in Re Scott Rhodes and Tim Whitten
03-17-00870-CV
| Tex. App. | Jan 4, 2018Background
- Trustees (Kenneth, Barry, Phillip Levien) sued Harlan and Stephen Levien in Bastrop County for fraud and related claims challenging two adult adoption orders; trial set for January 2018.
- Relators Tim Whitten and Scott Rhodes are former attorneys for the Levien brothers; served with properly issued trial subpoenas to appear and testify live at trial.
- Whitten and Rhodes were deposed in December 2016; numerous objections and privilege claims (attorney-client and work product) were raised during those depositions.
- Parties resolved many deposition disputes by a Rule 11 agreement and by rulings from the 53rd District Court; remaining privilege disputes were addressed in subsequent Travis County orders.
- Relators sought protective orders under Tex. R. Civ. P. 176.6(e) and 192.5 to avoid appearing live; Judge David Phillips denied the motion to excuse their trial attendance (order compelled appearance to give testimony but did not specify compelled disclosure of privileged matters).
- Trustees argue mandamus is unwarranted because (1) the order merely requires appearance, not compelled privileged disclosure; (2) existing rulings and agreements already limit privileged topics; and (3) any new privilege disputes can be resolved at trial without mandamus.
Issues
| Issue | Plaintiff's Argument (Relators) | Defendant's Argument (Trustees) | Held |
|---|---|---|---|
| Whether mandamus is warranted to prohibit live testimony by former counsel subpoenaed to testify at trial | Subpoena will force disclosure of attorney-client and work-product privileged matters; only protection is to excuse attendance | Order merely requires appearance and does not compel privileged disclosure; existing rulings/agreement already protect privileged topics; trial judge can rule on objections in real time | Mandamus denied — trial court did not abuse discretion in ordering appearance (trial court only required attendance) |
| Whether trial subpoenas were defective for failing to identify scope of testimony | A broad subpoena threatens privileged communications because scope not limited | Rules do not require specificity about examination scope for trial subpoenas; speculation does not justify pre-emptive protection | Trial subpoenas enforceable; lack of specificity alone is insufficient for mandamus |
| Whether prior deposition objections/privilege rulings moot mandamus | Relators claim unresolved privilege risks remain at trial | Many deposition objections were withdrawn or overruled by agreement and court orders, narrowing issues; any new issues can be raised at trial | Prior rulings render much of the concern moot; remaining issues are premature for mandamus |
| Whether Trustees’ need for live testimony outweighs Relators’ privilege concerns | Relators say live testimony risks privilege invasion and should be barred | Trustees need live testimony for credibility assessment, to obtain answers left open by deposition objections or withdrawn privileges, and to address discovery developed after depositions | Court recognized prejudice to Trustees if testimony excused; live testimony permitted subject to evidentiary objections at trial |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus only when trial court clearly abuses discretion and there is no adequate appellate remedy)
- In re Bexar County Criminal Dist. Att’y’s Office, 224 S.W.3d 182 (Tex. 2007) (standards for compelling attorney work product and limits on disclosure)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (jurors are sole judges of witness credibility)
- Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) (mandamus should not issue if it would be useless or unavailing)
- In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005) (doctrine of mootness for issues that cease to present a live controversy)
- Borden, Inc. v. Valdez, 773 S.W.2d 718 (Tex. App.—Corpus Christi 1989) (attorney may be examined; privilege protects specific communications but does not bar all questioning about nonconfidential matters)