in Re Mid-Century Insurance Company

IN THE
TENTH COURT OF APPEALS
No. 10-16-00374-CV
IN RE MID-CENTURY INSURANCE COMPANY
Original Proceeding
MEMORANDUM OPINION
Mid-Century Insurance Company has filed a petition for a writ of mandamus to
compel the trial court to withdraw an order overruling its claims of work product
privilege to certain documents in its claims file relating to its insured, Monica Cobb. Cobb
filed a notice of intent to take a written deposition of the custodian of records for Mid-
Century which included a subpoena duces tecum requiring the production of its entire
claims file. Cobb asserted an underinsured motorist claim (UIM) against Mid-Century
and had added claims for extra-contractual damages for bad faith. Mid-Century filed a
motion to quash the deposition on the basis that the documents now in question sought
by Cobb were privileged work product.1
The trial court conducted a hearing on Mid-Century's objections and assertion of
privilege. Mid-Century filed an affidavit by a claims adjuster and provided the trial court
with a privilege log prior to the hearing, and asked the trial court to review the documents
in-camera. The trial court conducted an in-camera inspection of the documents in
question and overruled Mid-Century's assertions of work product privilege. Mid-
Century filed this mandamus proceeding to seek an order requiring the trial court to
withdraw its order overruling its assertions of work product privilege.
STANDARD OF REVIEW
To be entitled to mandamus relief, a relator must demonstrate (1) the trial court
clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re
Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its discretion
if it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law
1Before the trial court, Mid-Century objected to the production of other parts of its claims file on the basis
of the attorney-client privilege. Those objections were sustained, and although they are listed in the original
privilege log filed with this Court in the original mandamus petition, those documents are not before us in
this proceeding. Additionally, this Court abated the mandamus for Mid-Century to provide a specific log
and notebook of the corresponding documents to the trial court and ordered the trial court to identify the
specific documents in question to be forwarded to this Court. The trial court entered an order entitled
"Order Reviewing Relator's Notebook Containing In Camera Documents" which attached the first
amended privilege log with the trial court's rulings which was submitted to this Court after the abatement.
The first amended privilege log reduced the number of documents in question in this proceeding. For
purposes of identification for the parties, our review is based on the first amended privilege log and
corresponding notebook that contained the sealed documents reviewed by the trial court in camera that
was filed with this Court on February 22, 2017.
In re Mid-Century Insurance Company Page 2
correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding) (per curiam). The scope of discovery is within the discretion of the
trial court. In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig.
proceeding). Appeal is not an adequate remedy when the trial court has erroneously
ordered the production of privileged documents. In re Christus Santa Rosa Health Sys., 492
S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).
WORK PRODUCT PRIVILEGE
The work product privilege protects communications "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." TEX. R. CIV. P. 192.5(a)(2). The work product privilege is
not necessarily specific to the claim for which it is sought, but is specific for the claim for
which it was created. Once it is created as work product in relation to a claim, it remains
work product and protected by a privilege from disclosure from any claim, subject only
to limited exceptions such as waiver. In this mandamus proceeding, Mid-Century
complains that the trial court abused its discretion by overruling its claims of work
product privilege.
ASSERTION OF THE PRIVILEGE
A party who seeks to withhold items from discovery on the basis that the
documents are privileged must make a prima facie showing that the documents are
In re Mid-Century Insurance Company Page 3
subject to the privilege asserted. In re E. I. DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004) (orig. proceeding). Generally, this prima facie showing is made by serving a
privilege log identifying the withheld documents and, if a hearing is held, by presenting
evidence supporting the privilege. See In re Maher, 143 S.W.3d 907, 913 (Tex. App.—Fort
Worth 2004, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917, 924 (Tex. App.—Waco
1999, orig. proceeding). The evidentiary requirement may be satisfied by the documents
themselves. See DuPont, 136 S.W.3d at 223. Cobb argues that Mid-Century did not timely
make a prima facie case for the privileges asserted because the privilege log and affidavit
were inadequate and therefore, all asserted privileges were waived.
Mid-Century provided a privilege log prior to the hearing regarding the asserted
privileges and the trial court conducted an in-camera inspection of all of the documents
Mid-Century asserted were privileged. We find that the privileges were not waived
because the documents themselves, taken with the affidavit of the claims adjuster, were
adequate to make the required prima facie showing. DuPont, 136 S.W.3d at 223.
CORE VERSUS NON-CORE WORK PRODUCT
"Core work product" made in anticipation of litigation includes "the work product
of an attorney or an attorney's representative that contains the attorney's or the attorney's
representative's mental impressions, opinion, conclusions, or legal theories" and is not
subject to discovery. TEX. R. CIV. P. 192.5(b)(1). Work product not qualifying as "core"
made in anticipation of litigation is discoverable only when the party seeking the material
In re Mid-Century Insurance Company Page 4
has demonstrated a substantial need for it and that a substantial equivalent cannot be
obtained by other means without encountering undue hardship. TEX. R. CIV. P.
192.5(b)(2).
An investigation is conducted in anticipation of litigation if it meets the two-prong
test of Flores which includes both an objective prong and a subjective prong. Flores v.
Fourth Court of Appeals, 777 S.W.2d 38, 40-41 (Tex. 1989). Specifically, an investigation is
conducted in anticipation of litigation if (1) "a reasonable person would have concluded
from the totality of the circumstances surrounding the investigation that there was a
substantial chance that litigation would ensue" (the objective prong); and (2) "the party
resisting discovery believed in good faith that there was a substantial chance that
litigation would ensue and conducted the investigation for the purpose of preparing for
such litigation" (the subjective prong). Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193, 207
(Tex. 1993). A "substantial chance of litigation" does not "refer to any particular statistical
probability that litigation will occur" but "simply means that litigation is more than
merely an abstract possibility or unwarranted fear." Id. at 204. The Texas Supreme Court
rejected the proposition "that the circumstances surrounding an accident can never by
themselves be sufficient to trigger the privilege." Id. "If a reasonable person would
conclude from the severity of the accident and the other circumstances surrounding it
that there was a substantial chance that litigation would ensue, then the objective prong
. . . is satisfied." Id. "It is not necessary that litigation be threatened or imminent, as long
In re Mid-Century Insurance Company Page 5
as the prospect of litigation is identifiable because of claims that have already arisen." Id.
at 205. Nor is it necessary for the plaintiff to have manifested an intent to sue. Id. at 204.
The subjective prong does not require the investigating party to be absolutely
convinced that litigation will occur; it requires only a good faith belief that there is a
substantial chance that litigation will ensue. Brotherton, 851 S.W.2d at 204. The subjective
prong also "requires that the investigation actually be conducted for the purpose of
preparing for litigation." Id. However, the language of Rule 192.5 does not require that
the sole or primary purpose of the material or communication be for preparing for
litigation. See TEX. R. CIV. P. 192.5.
An affidavit made by a claims adjuster for Farmers Insurance Exchange2 in June
of 2016 stated that Farmers opened a claim file relating to Cobb upon receiving a letter
from Cobb's attorney in March of 2010 regarding a claim for personal injury damages
sustained in the accident relevant to this proceeding. The letter was the first notification
of the accident that was received by Farmers. The adjuster stated that because of this
communication, based on her many years of training and experience, it was likely that
litigation was forthcoming as of that date. Further, the adjuster testified that all
communications made in the case from that time were made for the purposes of
evaluating the claims in anticipation of litigation. Our review of the documents in
question confirm the adjuster's statements regarding the communications in the claims
2 Farmers Insurance Exchange is authorized to adjust claims on behalf of Mid-Century Insurance Company.
In re Mid-Century Insurance Company Page 6
file and relating to the potential for an UIM claim. We find that the documents requested
meet both prongs of Flores, and as such, the documents meet the definition of work
product. TEX. R. CIV. P. 192.5(a)(2); see also Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193,
207 (Tex. 1993).
Cobb argues that if the documents are work product, they are non-core work
product and therefore, the documents should be produced because she has substantial
need of the materials in the preparation of her case and that she is unable, without undue
hardship, to obtain the substantial equivalent of the material by other means. TEX. R. CIV.
P. 192.5(b)(2).
A party seeking to obtain documents through this exception bears a heavy burden
to prove its applicability. In re Bexar Cnty. Criminal Dist. Attorney's Office, 224 S.W.3d 182,
187-88 (Tex. 2007) (orig. proceeding). Improving Cobb's odds of winning is not enough;
substantial need is not merely substantial desire. Id. at 188. As the party seeking
discovery of non-core work product, Cobb labors under a heavy burden to show both
that a substantial need for the materials exists and that materials equivalent to those
sought cannot be obtained without substantial hardship. In re Small, 346 S.W.3d 657, 668
(Tex. App.—El Paso 2009, orig. proceeding); In re McDaniel, No. 14-13-00127-CV, 2013
Tex. App. LEXIS 4052, 2013 WL 1279454, at *3 (Tex. App.—Houston [14th Dist.] Mar. 28,
2013, orig. proceeding) (mem. op.). Additionally, a "substantial need" is not established
by evidence that Cobb could not prove her cause of action without the materials. In re
In re Mid-Century Insurance Company Page 7
Bexar County Crim. Dist. Atty's Office, 224 S.W.3d at 188.
While Cobb argues that she has a substantial need for the privileged documents,
she has not met her "heavy burden" to prove that the work product privilege should be
overcome. Cobb argued to the trial court that she would be unable to prove her bad faith
claims against Mid-Century without the materials but did not attempt to show that there
was no other alternative method for her to prepare her case. Because Cobb did not meet
her burden, there was no proper basis for the trial court to overrule Mid-Century's
assertion of work product privilege for the documents in question.
We find that the trial court abused its discretion in overruling Mid-Century's
assertions of work product privilege surrounding the documents listed in the amended
privilege log provided to this Court. Because Mid-Century has no adequate remedy at
law, we conditionally grant the relief requested. The writ will issue only if the trial court
fails to comply with the Court's judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Writ conditionally granted
Opinion delivered and filed October 25, 2017
[OT06]
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