in Re Union Pacific Railroad Company
01-15-00918-CV
| Tex. App. | Oct 27, 2015Background
- April 15, 2014 collision between a Ford Mustang driven by Nicholas Trichel and a tractor-trailer leased by Union Pacific driven by Jeremy Hampton; Trichel seriously injured and his parents sued for negligence.
- Union Pacific retained outside counsel Marcy Rothman the same day to investigate and provide legal advice; William Green (claims director) participated as an in-house representative and recorded employee interviews of Hampton and James Wilson.
- Green later discovered the recorded interviews had not been provided to Rothman and gave her copies on October 20, 2015; Rothman voluntarily disclosed the existence of the recordings to plaintiffs’ counsel, asserted privilege, and produced a privilege log.
- Plaintiffs (the Trichels) demanded production; after in camera review and oral argument the trial court (Judge Kyle Carter) ruled on October 27, 2015 that the audio recordings and transcripts were discoverable and ordered immediate production.
- Union Pacific filed an emergency motion seeking a stay and a petition for writ of mandamus in the First Court of Appeals, arguing the recordings are protected by the attorney-client privilege and that immediate production would irreparably waive the privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recorded employee interviews with outside counsel are protected by the attorney-client privilege under Tex. R. Evid. 503 | The interviews are witness statements not subject to privilege; plaintiffs also suggested concealment supports production | Union Pacific: interviews are confidential communications between client representatives (Green, Hampton, Wilson) and counsel (Rothman) made to facilitate legal advice and thus privileged under Rule 503 | Trial court ruled statements discoverable and ordered immediate production; Union Pacific seeks mandamus to reverse that ruling |
| Whether a stay should issue pending mandamus to prevent disclosure of allegedly privileged material | Plaintiffs opposed delay and sought immediate production | Union Pacific: appeal is inadequate to remedy disclosure of privileged material; a stay is necessary to preserve the privilege while the court of appeals considers mandamus | Union Pacific requested emergency stay from the appellate court; stay outcome pending (mandamus filed) |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (erroneous orders compelling disclosure of privileged materials cannot be remedied adequately on appeal)
- In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006) (appeal inadequate when trial court erroneously orders production of privileged documents)
- In re USA Waste Mgmt., LLC, 387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012) (entity employee statements can qualify as communications by a client’s representative under Rule 503)
- In re Park Cities Bank, 409 S.W.3d 859 (Tex. App.—Tyler 2013) (factual recitation to counsel made for legal advice may be privileged)
- In re AEP Tex. Central Co., 128 S.W.3d 687 (Tex. App.—San Antonio 2003) (crime-fraud exception scope and requirements)
- In re Kelleher, 999 S.W.2d 51 (Tex. App.—Amarillo 1999) (stay appropriate to maintain status quo pending appellate review)