in Re Kubosh Bail Bonding, Kubosh Law Office, Paul Kubosh and Felix Michael Kubosh

Opinion issued May 16, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00417-CV
NO. 01-16-00418-CV
NO. 01-16-00419-CV
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IN RE KUBOSH BAIL BONDING, KUBOSH LAW OFFICE, PAUL
KUBOSH, AND FELIX MICHAEL KUBOSH, Relators
Original Proceeding on Petition for Writ of Mandamus
OPINION
In this mandamus proceeding, relators, Kubosh Bail Bonding, Kubosh Law
Office, Paul Kubosh, and Felix Michael Kubosh (collectively, “the Kuboshes”), ask
this Court to vacate the trial court’s order refusing to require real parties in interest
(“the Plaintiffs”) to produce unredacted copies of twelve emails (“the Emails”)
exchanged among one of the Plaintiffs’ counsel of record, a paralegal for the other
law firm representing the Plaintiffs, and Andrew Sullo, a third party defendant and
also a real party in interest. The trial court ruled that the Emails were protected from
discovery under the work product privilege.1 In two issues, the Kuboshes contend
that (1) the Emails do not constitute work product, or, alternatively, if the Emails are
work product, they are discoverable work product, and (2) that the denial of
discovery of the Emails severely compromises their ability to present their claims
and defenses, thus entitling them to mandamus relief.
We conditionally grant the petitions for writ of mandamus.
Background
Relator Paul Kubosh, an attorney, owns and operates Kubosh Law Office in
the City of Houston. His brother, Felix Michael Kubosh, owns and operates Kubosh
Bail Bonding. These offices are located adjacent to each other near the City of
Houston municipal courts. Third-party defendant and one of the real parties in
interest Andrew Sullo, also an attorney and bondsman, is a partner at Sullo & Sullo,
LLP, a Houston law firm that, like the Kubosh Law Office, has a substantial practice
1
The Honorable Michael Gomez, Judge of the 129th District Court of Harris County,
Texas, Respondent. The three underlying lawsuits are: William Carter et al. v.
Kubosh Bail Bonding, Kubosh Law Office, Paul Kubosh, and Felix Michael Kubosh,
No. 2013-50819 (129th Dist. Ct., Harris Cty., Tex.); Michael Youngblood v. Kubosh
Bail Bonding et al., No. 2015-39797 (129th Dist. Ct., Harris Cty., Tex.); and
Brandon Nash v. Kubosh Bail Bonding et al., No. 2015-39798 (129th Dist. Ct.,
Harris Cty., Tex.).
2
relating to traffic tickets and warrants arising out of unpaid tickets. The Plaintiffs
are seventy-four individuals who had warrants issued against them due to unpaid
traffic tickets and who approached Sullo for a bond.2
In 2011, the Texas Legislature enacted Government Code section 82.0651,
which creates civil liability for prohibited acts of barratry. Section 82.0651(c)
provides:
A person who was solicited by conduct violating the laws of this state
or the Texas Disciplinary Rules of Professional Conduct of the State
Bar of Texas regarding barratry by attorneys or other persons, but who
did not enter into a contract as a result of that conduct, may file a civil
action against any person who committed barratry.
Act of May 5, 2011, 82nd Leg., R.S., ch. 94, 2011 Tex. Gen. Laws 534, 535
(amended 2013) (current version at TEX. GOV’T CODE ANN. § 82.0651(c)). If a
2
The Plaintiffs, and remaining real parties in interest, are: Michael Youngblood,
Brandon Nash, William Carter, Farid Abi-Saab, Jose Alamo, Juan Alvarez, Brian
Arellano, Sandra Arnaez, Eric Ayala, Cherry Ayo-Vaughn, Gregory Barnes, Devin
Barrios, Preston Bawa, Jose Campa, Edward James Carney in his capacity as
representative of the Estate of Edward Buckley Carney, Eva Castillo, Jose Castro,
Felipe Cavazos, Gerry Chaney, Edward Chilton, Paul Collins, Hector Cuevas,
Miguel Diaz, Riggo Dominguez, Onyekachi Ekezie, Raymond Ford, Gustavo
Garcia, Jaime Gaytko, Kregg Gibson, Jonathan Glenn, Elizabeth Guerrero, Shelton
Harris, Mercy Hayes, Cirino Hernandez, Grant Hightower, Virginia Knauff,
Roberto Lares, Walter Lethermon, Edrich Mack, Juanita Marin, Linda Martin,
Baltazar Martinez, Jeanett Maya, Mauricio Mendez-Barrera, Settea Menedo,
Priscilla Munoz, Kristal Orozco, Sara Padilla, Joe Pecina, Thomas Pittard, Andrew
Ramirez, Janet Ramirez-Herrera, Ana Reyes, Jeffrey Rhodes, Larry Richard,
Derrick Rivers, Aleicia Roberts, Jason Rocha, Cynthia Sanchez, Dorothy Scott,
Ruby Sepulveda, Bolivar Sierra, Sean Simon, Randall Stevison, Eduwigis Suaste,
Gina Torres, Julio Torres, Leon Tousant, Ricardo Trevino, Eduardo Valdez,
Christina Villanueva, Patrick Washington, Marquis Williams, and Monica Wirz.
3
person prevails in a civil barratry action under section 82.0651(c), the person shall
recover from each person who engaged in barratry: (1) a penalty in the amount of
$10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable
and necessary attorney’s fees. TEX. GOV’T CODE ANN. § 82.0651(d) (West Supp.
2016). Section 82.0651(e) provides that “[t]his section shall be liberally construed
and applied to promote its underlying purposes, which are to protect those in need
of legal services against unethical, unlawful solicitation and to provide efficient and
economical procedures to secure that protection.” Id. § 82.0651(e). This statute
became effective on September 1, 2011.
In 2013, the Texas Legislature amended section 82.0651(c) to specify that a
person who was solicited by conduct violating Penal Code section 38.12(a) or (b) or
Texas Disciplinary Rule of Professional Conduct Rule 7.03, as opposed to any law
or disciplinary rule of Texas, but who did not enter into a contract as a result of that
conduct, may file a civil action against a person who committed barratry. Id.
§ 82.0651(c). Penal Code section 38.12(a) provides that a person commits the
offense of barratry or solicitation of professional employment if, with intent to obtain
an economic benefit, the person:
(1) knowingly institutes a suit or claim that the person has not been
authorized to pursue;
(2) solicits employment, either in person or by telephone, for himself
or for another;
4
(3) pays, gives, or advances or offers to pay, give, or advance to a
prospective client money or anything of value to obtain
employment as a professional from the prospective client;
(4) pays or gives or offers to pay or give a person money or anything
of value to solicit employment;
(5) pays or gives or offers to pay or give a family member of a
prospective client money or anything of value to solicit
employment; or
(6) accepts or agrees to accept money or anything of value to solicit
employment.
TEX. PENAL CODE ANN. § 38.12(a) (West 2016). Section 38.12(b) provides that a
person commits an offense if the person “knowingly finances the commission of an
offense under Subsection (a),” “invests funds the person knows or believes are
intended to further the commission of an offense under Subsection (a),” or “is a
professional who knowingly accepts employment within the scope of the person’s
license, registration, or certification that results from the solicitation of employment
in violation of Subsection (a).” Id. § 38.12(b).
Rule 7.03(a) of the Texas Disciplinary Rules of Professional Conduct
provides:
A lawyer shall not by in-person contact, or by regulated telephone or
other electronic contact as defined in paragraph (f) seek professional
employment concerning a matter arising out of a particular occurrence
or event, or series of occurrences or events, from a prospective client or
nonclient who has not sought the lawyer’s advice regarding
employment or with whom the lawyer has no family or past or present
attorney-client relationship when a significant motive for the lawyer’s
doing so is the lawyer’s pecuniary gain.
5
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 7.03(a), reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9); see
id. R. 7.03(f) (“As used in paragraph (a), ‘regulated telephone or other electronic
contact’ means any electronic communication initiated by a lawyer or by any person
acting on behalf of a lawyer or law firm that will result in the person contacted
communicating in a live, interactive manner with any other person by telephone or
other electronic means.”).
Beginning in September 2011, almost immediately after section 82.0651
became effective, the Plaintiffs approached Sullo at his Houston office for a bond
and representation regarding traffic tickets that were in “warrant status.” Sullo
averred that he informed each of the Plaintiffs about his office’s “price match”
program that involved the Plaintiffs calling a competing bail bond company to
receive a quote and Sullo agreeing to beat the quoted price by ten dollars. Prior to
making a phone call for the price match program, each Plaintiff signed a “Disclosure
& Agreement” form that set out the basis of the program. This form included the
following paragraph:
II. Potential Legal Action — Attorney [Sullo] has reason to
suspect that upon Client [the respective Plaintiff] making Client’s Price
Match phone call to the bond company, the Bond Company will
transfer the call to a law firm without Client’s request or consent.
Attorney believes this action may give rise to a civil cause of action
against the bond company or law firm under a new barratry statute or
other law which, if successful, may result in money damages for Client.
In some instances, the bond company may also quote on behalf of an
6
attorney or law firm which may also give rise to a cause of action.
Client agrees to make this phone call knowing that these potentially
illegal or unethical actions may occur by the bond company or law firm.
After Client’s phone call, Attorney will discuss with Client the potential
for a legal cause of action by Client against the bond company. If Client
wishes to pursue a legal cause of action against the bond company and
Attorney believes a legal cause of action does indeed exist, Client will
be required to sign a separate contact agreement with Attorney. By
signing this Disclosure & Agreement, Client is not committed or
obligated to hire Attorney to pursue a legal cause of action against the
bond company.
The Disclosure & Agreement form also asked for the Plaintiffs’ consent to record
the phone call, stating that “[t]his recording may be used, with Client’s consent, to
help prove the illegal and unethical action by the bond company or law firm.”
Each of the Plaintiffs, in the presence of Sullo or an employee of his law firm,
made a call to Kubosh Bail Bonding. Sullo provided each Plaintiff with a printed
“Instruction” sheet, which set out several questions to ask while on the phone,
including a question about whether the quoted price included attorney representation
and a question about whether the Plaintiff should report to Kubosh Bail Bonding or
Kubosh Law Office to finalize paperwork. In each case, an employee of Kubosh
Bail Bonding answered the phone and, upon discovering that the caller had traffic
tickets in warrant status, transferred the call to an employee of Kubosh Law Office.
This employee asked the Plaintiffs questions about their tickets and warrants, quoted
a price for the bonds, and stated that the quoted price included legal representation
and that Kubosh did not offer bonding services without representation. After
7
hanging up with the Kuboshes, each Plaintiff contemporaneously signed an
“attorney-client contract” with Sullo, in which the Plaintiff “retain[ed] Attorney to
prosecute all claims against all necessary defendants arising from possible acts of
barratry committed in attempting to obtain legal services.” The representation
contract included provisions allowing for Sullo to withdraw if he determined that the
claims lacked merit or were not economically feasible and allowing for Sullo to
associate with other attorneys or law firms in prosecuting the case.
The majority of the Plaintiffs, including named Plaintiff William Carter, made
their calls to the Kuboshes in September and October 2011. Several Plaintiffs made
calls in 2012, including named Plaintiffs Michael Youngblood and Brandon Nash,
and some Plaintiffs made calls as late as September 2013. Seventy-two of the
Plaintiffs met with Sullo in his Houston office. Youngblood and Nash, while having
traffic tickets from the City of Houston, are both residents of Beaumont, and Sullo
traveled to Beaumont in September and October 2012, respectively, to meet them
and to record their calls to the Kuboshes.
In early 2012, Sullo approached Brian Zimmerman, currently counsel of
record for the Plaintiffs, to discuss the possibility of referring the Plaintiffs who had
already made their calls to the Kuboshes to Zimmerman for prosecution of their
claims. Zimmerman later declared, under penalty of perjury, that in May or June of
2012, he and Joe Fisher of Provost Umphrey, also currently counsel of record for
8
Plaintiffs, agreed to accept referral of the Plaintiffs’ cases. At this point, in mid-
2012, no lawsuits against the Kuboshes had been filed, and several Plaintiffs,
including Youngblood and Nash, had not yet met with Sullo or made their calls to
the Kuboshes. In early 2013, Sullo notified the Plaintiffs that he intended to partner
with Zimmerman and Provost Umphrey to prosecute the claims, and each Plaintiff
signed an agreement and also a new attorney-client contract which set out the
division of any recovered attorney’s fees among counsel.
On April 5, 2013, Youngblood filed suit against the Kuboshes in Jefferson
County, where he lived and where he had made his call to the Kuboshes, for violation
of the civil barratry statute, Government Code section 82.0651. Youngblood
alleged:
On or about September 19, 2012, Plaintiff contacted Kubosh Bail which
is owned and operated by Michael Kubosh. Plaintiff had three traffic
tickets on which he needed to post bonds because they were in “warrant
status.” Plaintiff contacted Kubosh Bail after receiving a Kubosh Bail
Bonding business card containing Mike Kubosh’s name, cell phone
number, and office number. Based on this contact information, Plaintiff
dialed the telephone number advertised on Mike Kubosh’s bail bond
business card. A certified transcript of the telephone conversation is
attached hereto as Exhibit “A.”
A representative for Kubosh Bonding Company answered the
telephone and identified the business as “Kubosh Bonding Company.”
After Plaintiff informed the representative of Kubosh Bail that he
needed a quote for bonds for traffic tickets, the representative placed
Plaintiff’s call on hold. Shortly thereafter, a different representative
answered the telephone, and then identified the business as “Kubosh
Law.” See Exhibit “A.” Upon information and belief, Kubosh Law is
owned and operated by Paul Kubosh.
9
The Kubosh Law representative then quoted Plaintiff a price for a bond
for his traffic cases. The representative from Kubosh Law further
indicated that the price quoted for a bond included the posting of the
bond as well as the fee for an attorney to represent Plaintiff on his
traffic cases. Plaintiff never sought an attorney to represent him in
connection with obtaining his bond. Id.
(Emphasis in original.) Youngblood also attached to this pleading a transcript of a
conversation he had with Michael Kubosh shortly after Youngblood called Kubosh
Bail. In this transcript, after Kubosh asked Youngblood if his staff had helped him,
the transcript indicated that an “unidentified male” whispered “no.” This
“unidentified male” was later identified as Sullo. Youngblood’s petition was signed
by Zimmerman and made no mention of Sullo, who was not listed as co-counsel.
Plaintiff William Carter filed suit against the Kuboshes for civil barratry in
Harris County on August 28, 2013. The allegations in this petition were nearly
identical to the allegations in Youngblood’s petition, although this petition indicated
that Carter called Kubosh Bail on September 19, 2011. This pleading was also
signed by Zimmerman and made no mention of Sullo. Over the next two months,
Carter amended his petition three times to add a total of seventy-one additional
Plaintiffs who had, between September 2011 and September 2013, called Kubosh
Bail seeking a quote for a bond and were then transferred to Kubosh Law. The
10
allegations in the amended petitions remained nearly identical to the allegations in
Youngblood’s petition.3
On October 1, 2014, more than a year after Youngblood and Carter filed their
suits against the Kuboshes, Brandon Nash also filed suit in Jefferson County. He
alleged that on October 9, 2012, he called Kubosh Bail to receive a quote for a bond.
He alleged:
During the call, Kubosh Bail, working in conjunction with and/or for
the benefit of Kubosh Law Office, transferred Plaintiff’s call to the
Kubosh Law Office, without Plaintiff’s knowledge, consent, prompting
or desire. By transferring Plaintiff’s call, Defendants caused Plaintiff
to come into unrequested direct telephone contact with the Kubosh Law
Office for the purpose of aiding and abetting Kubosh Law office’s
efforts to obtain legal employment for its pecuniary benefit from the
Plaintiff.
As with Youngblood’s and Carter’s petitions, Zimmerman signed Nash’s petition,
and the petition did not mention Sullo and his involvement.
3
In his seventh amended petition, filed January 6, 2016, Carter provided additional
factual allegations, including allegations that, over the course of several years, the
Kuboshes have “engaged in a pattern and practice of violations [of the civil barratry
statute] as it relates to these Plaintiffs, as well as numerous others” and that “[t]he
general practice at Kubosh Bail Bonding was to regularly refer unknowing clients
to the Kubosh Law, which is located next door” and which shares the same phone
and computer system. Carter alleged that Kubosh Bail employees “transferred each
Plaintiff’s call to Kubosh Law in order for Kubosh Law to solicit employment for
the pecuniary benefit of attorney Paul Kubosh despite the fact that no Plaintiff
sought Kubosh Law’s advice regarding employment or requested communication
with Kubosh Law.” Carter alleged that by transferring the Plaintiffs’ calls, Kubosh
Bail “initiated telephonic communication and contact between Plaintiffs and
Kubosh Law, in order for Kubosh Law to solicit legal representation to Plaintiffs,
for Kubosh Law’s pecuniary gain.”
11
During the course of the litigation, the Kuboshes learned of Sullo’s
involvement with each of the Plaintiffs, and they sought discovery from Sullo of
documents relating to his representation of the Plaintiffs and his connection to the
case. The trial court in the Carter case ordered disclosure of Sullo’s attorney-client
contracts with the Plaintiffs and his referral agreements. Sullo and the Plaintiffs also
produced copies of the Disclosure & Agreement forms signed by each Plaintiff prior
to making their call to the Kuboshes and certified transcripts of each Plaintiff’s call.
Ultimately, the Kuboshes filed counterclaims against the Plaintiffs and a third-party
petition against Sullo, seeking a declaration that section 82.0651 is unconstitutional
and alleging causes of action for fraud and civil conspiracy, arising out of Sullo’s
involvement with the Plaintiffs and their calls to the Kuboshes.
On August 22, 2014, the Jefferson County district court in which the
Youngblood suit was filed held a hearing on several pending motions, including
motions to compel discovery responses filed by both sides. During this hearing, Joe
Fisher of Provost Umphrey, on behalf of Youngblood, stated:
But I can assure the Court that the call [to the Kuboshes] was made in
Jefferson County and the reason I know that is before I even got
involved in these cases Brian Zimmerman called me and said this
lawyer Sullo needs to borrow your conference room to come over and
see a client. So, I said okay. I wasn’t there. They used my conference
room and the call was made and the reason they were over here is
because Mr. Youngblood lives in Jefferson County and they used my
conference room and made the call.
12
Now, I didn’t find out about that [until] later that that’s what they were
doing in the conference room.
After this hearing, the Kuboshes propounded discovery requests to Youngblood,
Nash, and Sullo seeking, among other things, “[a]ll documents and records reflecting
oral or written communications regarding the reservation and use of the conference
room at Provost Umphrey for the making and recording of Youngblood’s and Nash’s
calls to the Kuboshes.”
In October 2014, the Kuboshes amended their counterclaims and third-party
claims to also assert violations of the federal Racketeering Influenced and Corrupt
Organizations Act (“RICO”) against the Plaintiffs and Sullo. The Kuboshes alleged
that the Plaintiffs and Sullo “formed a RICO association-in-fact enterprise with
common and continuing purposes, namely, to serve as a flexible vehicle for [Sullo’s]
filing of vengeful, Fraud on the Court lawsuits to destroy or degrade Sullo’s
competitors Michael Kubosh and Paul Kubosh by embroiling them in legally
meritless but expensive and time-consuming ‘civil barratry’ litigation.” As predicate
acts under RICO, the Kuboshes alleged that Sullo and the Plaintiffs engaged in mail
fraud and wire fraud.
In April 2015, the judicial panel on multidistrict litigation transferred Nash’s
suit and Youngblood’s suit to the Harris County district court in which Carter’s suit
was pending for the resolution of pretrial proceedings. See TEX. GOV’T CODE ANN.
§ 74.162 (West 2013) (providing for transfer of “civil actions involving one or more
13
common questions of fact pending in the same or different constitutional courts,
county courts at law, probate courts, or district courts to any district court for
consolidated or coordinated pretrial proceedings, including summary judgment or
other dispositive motions, but not for trial on the merits”).
After failing to receive the requested discovery of communications relevant
to reserving the conference room at Provost Umphrey to record Youngblood’s and
Nash’s calls to the Kuboshes, the Kuboshes moved the MDL court to compel
production of the twelve Emails at issue in this mandamus proceeding. In response,
the Plaintiffs argued that their withholding of the Emails was proper because the
Emails—between Zimmerman, Sullo, and staff for Fisher “related to meetings
involving potential clients”—constituted privileged work product. Under penalty of
perjury, Zimmerman declared,
Defendants are seeking communications between myself, co-counsel
Provost Umphrey, and Andrew Sullo, my client and Plaintiffs’
representative, that were made in connection with the representation of
already existing clients or the representation of potential clients. My
communications with Sullo and the Law Firm of Provost Umphrey
were made for the purpose of investigating claims and providing legal
representation for Michael Youngblood and Brandon Nash as well as
for providing legal representation and investigating claims on behalf of
the Plaintiffs in this case.
The trial court ordered the Plaintiffs to produce the Emails for an in camera
inspection. The Plaintiffs did so and also produced a privilege log indicating that
they had withheld fourteen emails dated from July 28, 2012, to October 8, 2012, and
14
exchanged among Sullo, Zimmerman, and Sasha Kimball, a Provost Umphrey
paralegal. The trial court also ordered the Plaintiffs to produce the Emails to the
Kuboshes with minimal redactions. The version of the Emails that the Plaintiffs
produced contained numerous redactions, including emails in which the entire body
of the email was redacted and emails in which the subject matter was redacted, in
addition to redactions within the body of the email. The only information contained
in the redacted Emails are requests from Sullo to Kimball to reserve a conference
room at Provost Umphrey on September 19, 2012, and October 9, 2012, as well as
Kimball’s responses confirming the dates and times.
The trial court held several hearings relating to the production of the Emails.
The Plaintiffs argued that, at the time of the Emails, from July to October 2012, the
majority of the Plaintiffs had already made their calls to the Kuboshes, had signed
attorney-client contracts with Sullo, and had been referred to Zimmerman and
Provost Umphrey, and, therefore, the Emails were made “clearly in anticipation of
litigation of the global prosecution of these matters.” The Plaintiffs thus argued that
because the Emails were exchanged in anticipation of litigation, they constituted
privileged work product. The trial court agreed and denied the Kuboshes’ motion to
compel. The trial court specifically found that the redacted portions of the Emails
constituted “work product that is not discoverable pursuant to Texas Rule of Civil
Procedure 192.5.”
15
After the trial court denied the Kuboshes’ motion to reconsider, this
mandamus proceeding followed.
Mandamus Standard of Review
Generally, to be entitled to mandamus relief, the relators must demonstrate
that the trial court abused its discretion and that they have no adequate remedy by
appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Walker, 827 S.W.2d at 839. A trial court has no discretion in determining what the
law is or in applying the law to the facts. Id. at 840. Thus, a clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of discretion. In
re Allstate Cty. Mut. Ins. Co., 85 S.W.3d 193, 195 (Tex. 2002) (orig. proceeding).
When the trial court’s discovery error vitiates or severely compromises a
party’s ability to present a viable claim or defense at trial, an appeal is not an
adequate remedy. Walker, 827 S.W.2d at 843. “[A] denial of discovery going to the
heart of a party’s case may render the appellate remedy inadequate.” Id. It is not
enough “to show merely the delay, inconvenience or expense of an appeal.” Id.
Rather, to be entitled to mandamus relief, the relators must demonstrate “the
16
effective denial of a reasonable opportunity to develop the merits of his or her case,
so that the trial would be a waste of judicial resources.” Id.
Work Product Privilege
In their first issue, the Kuboshes contend that the Emails do not constitute
work product, or, alternatively, that they constitute discoverable work product.
A. Extent of Work Product Privilege
The United States Supreme Court adopted the work product doctrine in the
1947 case of Hickman v. Taylor, noting that “it is essential that a lawyer work with
a certain degree of privacy, free from unnecessary intrusion by opposing parties and
their counsel.” 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947); see In re Bexar Cty.
Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (recognizing that
Supreme Court adopted work-product doctrine in Hickman and stating that Texas
discovery rules “protect those materials prepared by or at the request of an attorney
in anticipation of litigation”). In Texas, Texas Rule of Civil Procedure 192.5(a)
provides that “work product” is composed of:
(1) material prepared or mental impressions developed in
anticipation of litigation or for trial by or for a party or a party’s
representatives, including the party’s attorneys, consultants,
sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial
between a party and the party’s representatives or among a
party’s representatives, including the party’s attorneys,
consultants, sureties, indemnitors, insurers, employees, or
agents.
17
TEX. R. CIV. P. 192.5(a). Rule 192.5 further provides that “core work product,”
defined in the rule as “the work product of an attorney or an attorney’s representative
that contains the attorney’s or the attorney’s representative’s mental impressions,
opinions, conclusions, or legal theories,” is not discoverable. TEX. R. CIV. P.
192.5(b)(1). “Any other work product” is discoverable if the party seeking discovery
demonstrates a “substantial need of the materials in the preparation of the party’s
case” and that the party “is unable without undue hardship to obtain the substantial
equivalent of the material by other means.” TEX. R. CIV. P. 192.5(b)(2).
The purpose of the work product doctrine is to “preserve[] the rights of
attorneys to thoroughly prepare cases for trial and to investigate both favorable and
unfavorable aspects of their cases, while preventing attorneys from taking advantage
of their opposing counsel’s efforts.” In re Baytown Nissan Inc., 451 S.W.3d 140,
147 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); see Owens-Corning
Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991) (orig. proceeding)
(“The primary purpose of the work product rule is to shelter the mental processes,
conclusions, and legal theories of the attorney, providing a privileged area within
which the lawyer can analyze and prepare his or her case.”). The work product
privilege exempts from discovery an attorney’s documents, reports,
communications, memoranda, mental impressions, conclusions, opinions, or legal
18
theories “if generated in anticipation of litigation.” In re Baytown Nissan, 451
S.W.3d at 148.
A party satisfies the “anticipation of litigation” test when the party
demonstrates that “a reasonable person would have concluded from the totality of
the circumstances that there was a substantial chance that litigation would ensue and
the party asserting the work product privilege subjectively believed in good faith that
there was a substantial chance that litigation would ensue.” Id.; see Nat’l Tank Co.
v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993) (orig. proceeding). The subjective
portion of this test “is properly satisfied if the party invoking the privilege believes
in good faith that there is a substantial chance that litigation will ensue,” and the test
does not require the party invoking the privilege “to be absolutely convinced that
litigation will occur.” Brotherton, 851 S.W.2d at 204. To determine when a party
reasonably anticipates or foresees litigation, we look to the totality of the
circumstances and decide whether a reasonable person in the party’s position would
have anticipated litigation and whether the party actually did anticipate litigation. In
re Monsanto Co., 998 S.W.2d 917, 923–24 (Tex. App.—Waco 1999, orig.
proceeding) (citing Trevino v. Ortega, 969 S.W.2d 950, 956 (Tex. 1998)).
The work product privilege is “of continuing duration.” Owens-Corning
Fiberglas, 818 S.W.2d at 751–52. As such, the privilege is “not applicable solely to
the lawsuit in which it arises.” In re Baptist Hosps. of Se. Tex., 172 S.W.3d 136, 144
19
(Tex. App.—Beaumont 2005, orig. proceeding) (“Thus, the work product developed
in anticipation of, and during, Baptist’s litigation against the contractors extends to
BSA’s [subsequent] intervention against Baptist in the same suit.”).
Here, the Kuboshes contend that the work product privilege does not apply to
the Emails because the Emails were exchanged before plaintiffs Youngblood and
Nash made their phone calls to the Kuboshes while meeting with Sullo and thereby
suffered an alleged injury and, thus, the Plaintiffs cannot establish that the parties
invoking the privilege, Youngblood and Nash in particular, believed “in good faith
that there [was] a substantial chance that litigation [would] ensue,” as required to
show that the Emails were exchanged in anticipation of litigation. The Plaintiffs
argue that the work product privilege should apply, and that the Emails were
exchanged in anticipation of litigation, because sixty-eight of the Plaintiffs had made
calls to the Kuboshes and had signed representation agreements for their barratry
causes of action, and as part of the “global prosecution of the litigation,” the
Plaintiffs’ counsel “possessed a good faith belief prior to the creation and
transmission of the Privileged Emails that the barratry litigation against [Kubosh]
would ensue.” We agree with the Kuboshes.
The Plaintiffs began making calls to the Kuboshes in September 2011, almost
immediately after section 82.0651 became effective. These plaintiffs
contemporaneously signed representation agreements with Sullo authorizing him “to
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prosecute all claims against all necessary defendants arising from possible acts of
barratry committed in attempting to obtain legal services.” By June 2012, sixty-
eight Plaintiffs had made calls to the Kuboshes, and Zimmerman Axelrad and
Provost Umphrey had agreed to accept referral of these cases from Sullo, although
none of the Plaintiffs had been notified about the referral at this point. At this point
in time, no lawsuit against the Kuboshes had been filed.
In July 2012, Sullo contacted Zimmerman by email about reserving a
conference room in Beaumont to meet a potential client for the barratry litigation.
Over the course of the next two months, Sullo, Zimmerman, and Kimble, a Provost
Umphrey paralegal, exchanged the Emails at issue concerning reservation of a
Provost Umphrey conference room to meet with potential clients. In producing
redacted copies of the Emails to the Kuboshes, the Plaintiffs redacted the names of
the potential clients and other information concerning the purpose of using the
conference room. The Emails were exchanged before Sullo met with Youngblood
and Nash at Provost Umphrey to call the Kuboshes and thus were necessarily
exchanged before Youngblood and Nash, who had had no prior contact with the
Kuboshes before the calls that they made in Sullo’s presence in Beaumont, suffered
an alleged injury.
In determining whether communications were made “in anticipation of
litigation” for purposes of applying the work product privilege, courts consider not
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only whether a reasonable person would have concluded from the totality of the
circumstances that there was a substantial chance that litigation would ensue, but
also whether “the party invoking the privilege believes in good faith that there is a
substantial chance that litigation will ensue.” Brotherton, 851 S.W.2d at 204
(emphasis added); In re Baytown Nissan, 451 S.W.3d at 148. The Plaintiffs argue
that, as a result of the calls that had been made by sixty-eight plaintiffs to the
Kuboshes from September 2011 to June 2012, by the time the Emails were
exchanged beginning in late July 2012, the Plaintiffs’ “counsel possessed a good
faith belief prior to” the exchange of the Emails that litigation against the Kuboshes
would ensue. However, the inquiry is not whether counsel possessed a good faith
belief that litigation would ensue but rather whether the party invoking the privilege
possessed a good faith belief. Here, at the time of the Emails, Youngblood and Nash
had not had contact with the Kuboshes and had not yet suffered the alleged injury
on which their subsequent lawsuits were based. Under these facts, at the time of the
Emails exchanged among the lawyers, there is no proof that Youngblood and Nash
subjectively believed in good faith that litigation by these Plaintiffs against the
Kuboshes would ensue. See Brotherton, 851 S.W.2d at 204; In re Baytown Nissan,
451 S.W.3d at 148; see also In re Maher, 143 S.W.3d 907, 914 (Tex. App.—Fort
Worth 2004, orig. proceeding) (holding that party asserting work product privilege
did not satisfy subjective requirement of whether it, in good faith, anticipated
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litigation, in part because it provided no affidavits or testimony at hearing in support
of privilege).
Plaintiffs cite Brotherton for the proposition that “anticipation of litigation”
does not require the plaintiff to have manifested an intent to sue. 851 S.W.2d at 204.
Likewise, they cite the Austin Court of Appeals’ decision in Wiley v. Williams for
the proposition that litigation can be reasonably anticipated before the party hires an
attorney. 769 S.W.2d 715, 718 n.2 (Tex. App.—Austin 1989, orig. proceeding).
These are correct statements of law. These cases do not, however, hold that litigation
can be reasonably anticipated before the party invoking the privilege even suffers an
alleged injury, which is the situation in this case with regard to Youngblood and
Nash.
Furthermore, we note that the Texas Supreme Court has held that the work
product privilege is “of continuing duration,” see Owens-Corning Fiberglas, 818
S.W.2d at 751–52, and that courts have interpreted this to mean the privilege is “not
applicable solely to the lawsuit in which it arises.” In re Baptist Hosps. of Se. Tex.,
172 S.W.3d at 144. In holding that the work product privilege is of continuing
duration, the Texas Supreme Court stated that “any party which is a repeat litigant
clearly must be allowed to develop an overall legal strategy for all the cases in which
it is involved” and gave examples including “a corporation sued repeatedly in
products liability, a civil rights organization suing repeatedly to enforce
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desegregation of schools, or an environmental group which must sue again and again
to redress environmental wrongs.” Owens-Corning Fiberglas, 818 S.W.2d at 751.
In Owens-Corning Fiberglas, a case involving asbestos litigation, the trial court
ordered Owens-Corning to produce work product that had been created during the
course of previous litigation because the documents “had not been generated
specifically in defense of the instant case.” Id. at 750. In ruling that the trial court
had abused its discretion by ordering the production, the Texas Supreme Court held
that work product created by a party in one case retains its privileged character in
subsequent litigation. Id. at 751–52; cf. In re Baptist Hosps. of Se. Tex., 172 S.W.3d
at 144 (holding that privileged work product developed in anticipation of litigation
between Baptist Hospitals and its contractors in breach of contract suit arising out of
construction of ambulatory surgical center retained its privileged character when
Baptist Hospitals’ tenant subsequently intervened in same suit and sought production
of work product).
Here, however, the “repeat litigant” is the Kuboshes, who are defending
against three separate, but related, suits by three groups of Plaintiffs, who are the
parties claiming work product privilege. The Carter Plaintiffs, most of whom had
made their calls to the Kuboshes by the time the Emails were exchanged, are not
also plaintiffs in Youngblood’s or Nash’s suits. They are thus not themselves repeat
litigants; nor is Youngblood or Nash. This is therefore not a situation in which a
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plaintiff generates privileged work product in anticipation of litigation in one case
and then files subsequent suits against different defendants, all of which involve use
of the same work product. Nor is this a situation in which a defendant generates
privileged work product in anticipation of defending itself in litigation and then
seeks protection from production of that work product in later lawsuits on the same
issue. See, e.g., Owens-Corning Fiberglas, 818 S.W.2d at 750–52; see also
Humphreys v. Caldwell, 888 S.W.2d 469, 471 (Tex. 1994) (per curiam) (holding that
privileged work product created by attorney for defendant in car-accident litigation
retained privileged character in subsequent litigation between car-accident plaintiff
and car-accident defendant’s insurer). Instead, in this situation, some plaintiffs in
one suit had already suffered their alleged injuries, but the plaintiffs in related, but
separate, suits, who were the subject of the challenged communications, had not yet
suffered their alleged injuries, and all of the Plaintiffs seek protection from
production of the challenged communications.
We conclude that because the Emails were exchanged prior to Youngblood’s
and Nash’s suffering an alleged injury, Youngblood and Nash did not have a good
faith belief that there was a substantial chance that litigation would ensue on their
behalf, and, therefore, the Emails were not created and exchanged in “anticipation
of litigation.” See Brotherton, 851 S.W.2d at 204; In re Baytown Nissan, 451 S.W.3d
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at 148. Thus, we hold that the trial court abused its discretion by ruling that the
Emails were privileged work product that should not be produced to the Kuboshes.
B. Offensive Use of Work Product Privilege
Furthermore, even if the Emails do constitute privileged work product, we
agree with the Kuboshes that the Plaintiffs have waived their privilege as a result of
their offensive use of the Emails. As the Texas Supreme Court has held, “A plaintiff
cannot use one hand to seek affirmative relief in court and with the other lower an
iron curtain of silence against otherwise pertinent and proper questions which may
have a bearing upon his right to maintain his action.” Ginsberg v. Fifth Court of
Appeals, 686 S.W.2d 105, 108 (Tex. 1985) (orig. proceeding); In re Sw. Airlines
Co., 155 S.W.3d 622, 624 (Tex. App.—San Antonio 2004, orig. proceeding). An
offensive, rather than a defensive, use of a privilege “lies outside the intended scope
of the privilege.” Alford v. Bryant, 137 S.W.3d 916, 921 (Tex. App.—Dallas 2004,
pet. denied) (citing Ginsberg, 686 S.W.2d at 107); see also Republic Ins. Co. v.
Davis, 856 S.W.2d 158, 163 (Tex. 1993) (stating, in context of whether attorney-
client privilege has been waived, that “[i]n an instance in which the privilege is being
used as a sword rather than a shield, the privilege may be waived”). The work
product privilege can be waived by a party’s offensive use of the privilege. Lewis v.
Wittig, 877 S.W.2d 52, 57 (Tex. App.—Houston [14th Dist.] 1994, orig.
proceeding); see also Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490
26
(Tex. 1995) (per curiam) (orig. proceeding) (“[T]he work product privilege may be
waived under the offensive use doctrine.”).
To determine whether an offensive-use waiver has occurred, courts consider
the following factors: (1) whether the party asserting the privilege has sought
affirmative relief; (2) the information sought must be such that, if believed by the
factfinder, in all probability it would be outcome-determinative of the cause of action
asserted; and (3) disclosure of the information must be the only means by which the
aggrieved party may obtain the evidence. Davis, 856 S.W.2d at 163; In re Sw.
Airlines, 155 S.W.3d at 624; In re United Supermarkets, Inc., 36 S.W.3d 619, 621
(Tex. App.—Amarillo 2000, orig. proceeding) (“The theory underlying the waiver
of a privilege by its offensive use is that a party who is seeking affirmative relief
should not be permitted to maintain an action, and at the same time, maintain
evidentiary privileges that protect from discovery outcome determinative
information not otherwise available to the other party.”). Mere relevance or a
contradiction in position, without more, is insufficient for offensive-use waiver;
instead, the privileged information “must go to the very heart of the affirmative relief
sought.” Davis, 856 S.W.2d at 163. “If any one of these requirements is lacking,
the trial court must uphold the privilege.” Id.
The Plaintiffs here clearly seek affirmative relief under section 82.0651,
including statutory penalties, actual damages, and attorney’s fees. See TEX. GOV’T
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CODE ANN. § 82.0651(d) (stating allowable damages). Second, among the defenses
the Kuboshes raise to the Plaintiffs’ claims are their assertions that they did not
improperly solicit the Plaintiffs, that the Plaintiffs suffered no injury as a result of
their conduct, and that the Plaintiffs improperly brought their lawsuit to receive
damages without suffering an actual injury. The Emails demonstrate that Plaintiffs’
counsel and Sullo worked together to set up Youngblood’s and Nash’s phone calls
to the Kuboshes, expecting that they would suffer an “injury” and then participate in
litigation against the Kuboshes, albeit in Jefferson County instead of Harris County.
If believed by the factfinder, in all probability, the Emails would be outcome-
determinative of the Plaintiffs’ cause of action for civil barratry, as they call into
question whether the Plaintiffs suffered an injury when they called the Kuboshes.
See Davis, 856 S.W.2d at 163 (noting that, to satisfy offensive-use doctrine, mere
relevance of privileged information is not enough, but information must instead “go
to the very heart of the affirmative relief sought”). Finally, disclosure of the Emails
is the only means by which the Kuboshes can obtain evidence that Plaintiffs’ counsel
and Sullo set up meetings with Youngblood and Nash specifically so they could call
the Kuboshes and potentially join in the litigation.
We conclude that, even if the Emails constitute work product, the Plaintiffs
have waived the work product privilege under the offensive use doctrine. See id.;
Ginsberg, 686 S.W.2d at 107–08; In re Sw. Airlines, 155 S.W.3d at 624–25; Alford,
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137 S.W.3d at 922. We therefore hold that the trial court abused its discretion by
failing to order the Plaintiffs to disclose the unredacted Emails to the Kuboshes.
C. Compromise of Ability to Present Claims or Defenses
Having determined that the trial court erred by failing to require the Plaintiffs
to produce the Emails to the Kuboshes, we now consider whether the Kuboshes have
demonstrated their entitlement to mandamus relief by showing that the discovery
error severely compromises their ability to present a viable claim or defense at trial,
as argued in their second issue. See Walker, 827 S.W.2d at 843.
In their live pleading, the Kuboshes raise several defenses and affirmative
claims for relief against both the Plaintiffs and against Sullo as a third-party
defendant. In addition to alleging that their actions did not violate section 82.0651,
the Kuboshes allege that the Plaintiffs’ lawsuits were “brought for an improper
purpose” and are a “fraud against the Kuboshes and a fraud on the Court.” The
Kuboshes also allege, “The entire set-up of these lawsuits is fraudulent and the
lawsuits [are] part and parcel of the criminal enterprise. The phone calls [to the
Kuboshes] were made by the Plaintiffs by agreement with Sullo knowing they would
be transferred and for the express purpose to stage and bring the lawsuits against the
Kuboshes.” As a defense, the Kuboshes assert that the Plaintiffs have not suffered
an actual and concrete injury, and that a “bare statutory violation” by the Kuboshes,
if any such violation of section 82.0651 occurred as a result of their actions, does
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not confer standing on the Plaintiffs to sue under section 82.0651. The Kuboshes
specifically allege that “Plaintiffs made the calls [to the Kuboshes] in conspiracy
with Sullo for the express purpose of creating the lawsuits.”
As an affirmative defense, the Kuboshes allege that the Plaintiffs’ recovery
on their civil barratry claims is barred “by the affirmative defenses of illegality,
fraud, contravention of public policy, and unclean hands.” The Kuboshes also assert
several claims for affirmative relief, including a declaration that section 82.0651 is
unconstitutional, a cause of action for civil conspiracy, causes of action for RICO
violations, and causes of action for violation of the federal wiretap statute and the
Texas Interception of Communication Act. Specifically, the Kuboshes allege that
the Plaintiffs and Sullo committed the RICO predicate acts of mail fraud and wire
fraud.
Central to both the Kuboshes’ defenses to the section 82.0651 claims brought
against them as well as their affirmative claims for relief is their contention that Sullo
orchestrated the Plaintiffs’ claims and set up the telephone calls that became the
basis for the Plaintiffs’ claims. With respect to their RICO claims, they assert that
Sullo and the Plaintiffs engaged in a scheme to bring fraudulent and meritless causes
of action against them for alleged violations of the civil barratry statute. The
Kuboshes argue that the Emails are necessary to show that “there can be no
‘solicitation’ by the Kuboshes on facts where Plaintiffs were recruited and provided
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consideration by Sullo” and that “the litigation before the court is part of the
continuous racketeering activity for which the Kuboshes sue.” We agree that the
Emails are critical to the Kuboshes’ defenses and affirmative claims.
The Emails do not merely include discussions about the logistics of reserving
a conference room at Provost Umphrey so Youngblood and Nash can make their
calls to the Kuboshes. Instead, they are relevant to the Kuboshes’ contention that
the Plaintiffs were improperly solicited to bring the claims against them and that the
civil barratry claims were brought for an improper purpose. These emails go to the
heart of the Kuboshes’ case. See Walker, 827 S.W.2d at 843. Without these Emails,
the Kuboshes’ ability to present a viable claim or defense at trial is severely
compromised. See id.; see also In re State Farm Mut. Auto. Ins. Co., 982 S.W.2d
21, 24 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding) (holding relator
entitled to mandamus relief to correct denial of discovery because, without requested
discovery, relator “cannot develop facts consistent with a fraudulent scheme” and
relator’s “ability to defend the lawsuit and to prosecute its counterclaim will be
vitiated”); ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App.—Houston
[1st Dist.] 1996, orig. proceeding) (granting mandamus relief because “the
documents ISK sought plainly go to the heart of ISK’s fraud case” and “[t]he lack
of those documents will severely compromise ISK’s ability to present a viable fraud
claim at trial”). We therefore hold that mandamus relief is warranted in this case.
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We sustain the Kuboshes’ first and second issues.
Conclusion
We conditionally grant the Kuboshes’ petition for writ of mandamus and order
the trial court to vacate its order denying the Kuboshes’ production of the unredacted
Emails. The writ will only issue if the trial court fails to comply.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
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