in Re Baytown Nissan Inc., Burklein Family Limited Partnership, Frederick W. Burklein and J. Cary Gray
2014 Tex. App. LEXIS 12197
| Tex. App. | 2014Background
- Baytown Nissan agreed to sell its Nissan dealership; Nissan North America had a contractual right of first refusal (ROFR) and exercised it, so the sale to BSAG failed and BSAG sued for damages.
- Before Nissan exercised the ROFR, Baytown Nissan’s counsel J. Cary Gray called Brenda Karen Phillips, general counsel for the Texas Automobile Dealer Association (TADA), to discuss the transaction.
- BSAG sought discovery of the substance of the June 2013 Gray–Phillips call and intended to call Phillips at trial; Baytown Nissan/Gray asserted attorney-client and work-product privileges for the communications.
- The trial court overruled privilege objections and ordered Gray and Phillips to be re-deposed and Gray to answer a question about the conversation; Gray sought mandamus relief from the court of appeals.
- The court of appeals held there was no implied attorney-client relationship between Gray/Baytown Nissan and Phillips/TADA, denied mandamus on the attorney-client claim, granted mandamus as to Gray’s deposition on work-product grounds, and denied mandamus as to Phillips’s testimony.
Issues
| Issue | Plaintiff's Argument (Baytown Nissan) | Defendant's Argument (BSAG) | Held |
|---|---|---|---|
| Whether communications between Gray and TADA counsel Phillips are protected by the attorney-client privilege | Communications with Phillips (TADA GC) are privileged because Rule 503 does not require the attorney to be the party’s own counsel and an attorney-client relationship was implied by membership and the call | Privilege requires an attorney-client relationship; no express or implied engagement here | No attorney-client privilege; court declined to extend Rule 503 to non-clients and found no implied relationship |
| Whether an implied attorney-client relationship existed between Baytown/Gray and Phillips | As a TADA member, Baytown Nissan impliedly engaged TADA counsel (Phillips) as its attorney | Implied attorney-client relationships must be shown by objective evidence of mutual agreement or conduct; here none exists | No implied relationship: objective factors (no engagement, no confidentiality assurances, Phillips’ routine calls) do not support privilege |
| Whether Phillips’s testimony about the call is protected by work-product doctrine | The call involved investigation and representation matters related to anticipated litigation, so work product protects Phillips’ disclosures | Phillips was not acting as Gray’s representative; she disavowed representation and provided general info; her disclosures are not work product of Baytown | No work-product protection for Phillips’ testimony; trial court properly ordered her deposition answers |
| Whether Gray must testify about substance and impressions from the call (work-product and core work product) | The conversation was in anticipation of litigation; Gray’s impressions and strategic conclusions are work product and core work product | BSAG argued facts are discoverable and they have need; some factual content may be available from Phillips | Gray’s mental impressions/opinions are core work product and undiscoverable; factual details are non-core but BSAG failed to show substantial need/undue hardship given Phillips’ availability — mandamus granted to protect Gray’s deposition |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus proper to correct legal error and when no adequate appellate remedy exists)
- Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993) (anticipation-of-litigation test for work-product protects communications when reasonable person would foresee litigation)
- Marshall v. Hall, 943 S.W.2d 180 (Tex. App.—Houston [1st Dist.] 1997) (attorney-agent interview notes and similar materials are protected as work product)
- In re Baptist Hosps. of S.E. Tex., 172 S.W.3d 136 (Tex. App.—Beaumont 2005) (compelling deposition of counsel about case subject matter generally implicates work-product concerns and is disfavored)
- Mem’l Hosp.—The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996) (mandamus to protect privileged confidential information from disclosure)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (work-product doctrine protects attorney files; factual material hidden in attorney files may be discoverable only in exceptional circumstances)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (burden on party resisting discovery to show clear abuse of discretion for mandamus relief)