in Re National Lloyds Insurance Company, Wardlaw Claims Service, Inc. and Ideal Adjusting, Inc.
532 S.W.3d 794
| Tex. | 2017Background
- National Lloyds designated its trial attorney, Scot Doyen, as a testifying expert to oppose homeowners’ attorney-fee claims in multiple related suits.
- After Doyen testified in a prior similar case and could not recall firm billing specifics, homeowners served interrogatories and requests for production seeking hourly rates, total amounts billed, expenses, invoices, payment logs, flat-fee arrangements, and audit documents for Doyen and other firms representing National Lloyds in those cases.
- National Lloyds objected on grounds the requests were overly broad, irrelevant, and protected by attorney-client and work-product privileges; it produced no documents to the special master or trial court.
- A special master recommended, and the trial court ordered (with allowance for redaction of privileged material), that National Lloyds respond to the modified discovery requests.
- This mandamus proceeding challenges the trial court’s discovery order; the majority opinion (not reproduced here) reversed, but Justice Phil Johnson dissented, arguing the trial court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper discovery methods for a testifying attorney designated as expert | Homeowners: interrogatories and document requests appropriate to probe Doyen’s personal knowledge and billing records | National Lloyds: plaintiffs should have used Rule 195 expert-discovery methods; interrogatories/production improper | Dissent: Trial court may address only issues raised; interrogatories/requests for production can be appropriate where witness has factual knowledge (no sua sponte error) |
| Relevance of opposing party’s billing rates and totals | Homeowners: billing data relevant to impeach Doyen, test credibility, and potentially show customary or comparable fees | National Lloyds: such data generally irrelevant to reasonableness/necessity of plaintiffs’ fees; invasion of work-product/privilege | Dissent: Billing data at least potentially relevant for cross-exam and comparison; limited discovery was within trial court discretion |
| Privilege and work-product protection for billing/invoice materials | Homeowners: limited, redacted production protects privileged content while allowing impeachment material | National Lloyds: en masse production invades work-product and attorney-client privileges | Dissent: Trial court properly allowed redaction; requests were narrow (billing slice), unlike wholesale file production in Valdez |
| Burden and risk of prejudice/confusion from producing fee records | Homeowners: production is routine and not unduly burdensome; insurers commonly maintain invoices and audits | National Lloyds: production risks prejudice, confusion, and abusive discovery | Dissent: No showing of undue burden/prejudice; trial court’s limited order avoided such risks and was not an abuse of discretion |
Key Cases Cited
- Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009) (scope of permissible discovery and standard for denying discovery)
- In re Am. Optical Corp., 988 S.W.2d 711 (Tex. 1998) (trial court discretion over discovery scope)
- In re Nat’l Lloyds Ins. Co., 449 S.W.3d 486 (Tex. 2014) (standards for reviewing discovery rulings)
- E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (burden on party resisting discovery to establish privilege)
- Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010) (reasonableness of statutory attorney’s fees is generally a jury question)
- Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop, 337 S.W.3d 846 (Tex. 2011) (witness may be both fact and expert witness; cross-examination scope)
- Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (factors for determining reasonable attorney’s fees)
- Nat’l Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993) (en masse production of entire attorney file improper because it reveals privileged/work-product materials)
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (court not required to raise certain issues sua sponte)
- In re E.N.C., 384 S.W.3d 796 (Tex. 2012) (distinguishing discovery from admissibility decisions)