in Re Scott Rhodes and Tim Whitten, 03-17-00870-CV

Background

This is a mandamus petition challenging a district court order compelling two attorneys (Rhodes and Whitten) to testify live at trial about their representation in prior adult-adoption proceedings involving the Levien parties.
Petitioners (the attorneys/relators) argue the testimony sought would necessarily elicit attorney–client communications and work product generated in anticipation of litigation, and thus is privileged.
Plaintiffs (the trustees) say they need the attorneys’ live testimony about their knowledge/investigation of Stephen Levien’s residency and alleged fraud on the court; they also assert any privilege rulings can be addressed at trial or on appeal.
The relators contend Plaintiffs have already taken depositions, received redacted documents, and can obtain any nonprivileged evidence from defendants or existing records, so Plaintiffs cannot show the Texas Supreme Court’s required “substantial need” or inability to obtain the substantial equivalent without undue hardship.
Relators invoke Texas Supreme Court precedent (In re Bexar County) that requires a heavy burden to overcome work-product protection and that appellate review is an inadequate remedy where privileged material is wrongly disclosed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial subpoenas can compel attorneys to testify about actions/communications during prior representation	Trustees: live testimony is relevant to residency and fraud claims; jury should assess demeanor; prior depositions not videotaped	Relators: testimony would elicit privileged attorney–client communications and core work product and therefore is protected	Relators argue district court abused its discretion in ordering testimony because it seeks privileged material
Whether Plaintiffs carried the burden to show "substantial need" and inability to obtain the substantial equivalent without undue hardship (Bexar Cnty. standard)	Trustees: live testimony may reveal nonprivileged matters and is necessary for trial presentation	Relators: Plaintiffs failed to identify any nonprivileged, relevant testimony, have depositions/documents, and defendants can provide equivalent evidence	Relators contend Plaintiffs did not and cannot meet the heavy burden; thus subpoenas should be quashed
Whether appeal would be an adequate remedy for any erroneous disclosure of privileged information	Trustees: any privilege objections can be raised at trial and on appeal afterward	Relators: erroneous disclosure of privileged material is irreparable and cannot be undone on appeal; mandamus is appropriate	Relators rely on Bexar Cnty. to show appeal is inadequate and mandamus is warranted
Whether routine subpoena practice or precedent (e.g., Borden, Hays Cnty.) permits live attorney testimony here	Trustees: prior cases suggest depositions/subpoenas do not always require quash absent proof of privilege for each question	Relators: Bexar Cnty. controls for attorney testimony about representation; attorneys are treated differently from nonlawyer witnesses	Relators argue Bexar Cnty. forecloses compelling such testimony absent substantial need and lack of alternatives

Key Cases Cited

In re Bexar County Criminal Dist. Attorney’s Office, 224 S.W.3d 182 (Tex. 2007) (work product and attorney testimony from counsel about representation require a showing of substantial need and inability to obtain equivalent information)
In re Baptist Hosp. of Southeast Texas, 172 S.W.3d 136 (Tex. App.—Beaumont 2005) (soliciting testimony from opposing counsel is inappropriate under most circumstances; court may limit discovery when obtainable elsewhere)
Nat’l Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993) (attorney litigation files and selection/ordering of documents are protected work product)
Borden, Inc. v. Valdez, 773 S.W.2d 718 (Tex. App.—Corpus Christi 1989, no writ) (distinguishes depositions taken before questioning; scope of inquiry matters when privilege is asserted)
Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244 (Tex. App.—Houston [14th Dist.] 2003) (attorney’s subjective belief about existence of an attorney–client relationship is not determinative)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (jury is the sole judge of witness credibility; does not override privilege or work-product rules)
Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.—Austin 2002) (appellate courts defer to trial courts’ assessment of evidence; credibility determinations are for the factfinder)