in Re Union Pacific Railroad Company, 01-15-00918-CV

On April 15, 2014 a collision involved a Ford Mustang (driver Nicholas Trichel) and a tractor-trailer leased by Union Pacific and driven by Jeremy Hampton; plaintiffs sued Union Pacific and Hampton for negligence.
Two days after the accident Union Pacific retained outside litigation counsel (Marcy Rothman) to investigate and advise; Rothman attended recorded interviews of Hampton and another driver (James Wilson) conducted by Union Pacific’s claims director (William Green), a representative of in‑house counsel.
The audio recordings of those interviews were later located and, after counsel learned of them, Union Pacific disclosed their existence to plaintiffs while asserting attorney‑client privilege and produced a privilege log.
The trial court conducted an in‑camera review of transcripts and ruled that the recorded interviews were not privileged and ordered immediate production of the recordings and transcripts.
Union Pacific filed a mandamus petition arguing the trial court abused its discretion because the recordings are privileged communications made to facilitate legal services, that the crime‑fraud exception is not shown, and that any voluntary disclosure did not waive the privilege; it also argues appeal is inadequate because the privilege cannot be restored after disclosure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the recorded post‑accident interviews are protected by the attorney‑client privilege	The Trichels: interviews are discoverable (argued they are witness statements and invoked crime‑fraud or waiver theories)	Union Pacific: interviews were confidential communications between client representatives and outside counsel made to facilitate legal advice and are privileged	Trial court (lower court): ordered production, finding statements discoverable and overruled privilege objections
Whether Union Pacific waived the privilege or has an adequate appellate remedy	The Trichels: Union Pacific waived by belated disclosure of recordings and/or failed to timely assert privilege under discovery rules	Union Pacific: no duty to disclose these litigation communications, Rule 193.3(c) exempts such materials from log/identification, and any voluntary disclosure did not waive privilege; appeal is inadequate because privilege cannot be restored after production	Trial court: implicitly rejected waiver/exemption arguments and required immediate disclosure

In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus standard for discovery and privilege disputes)
In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (trial court abuses discretion by ordering discovery beyond rules; mandamus available)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standard for mandamus and inadequacy of appellate remedy)
In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006) (appeal inadequate when court orders disclosure of confidential/privileged materials)
In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (entity‑representative/subject‑matter test for privilege)
In re USA Waste Mgmt. Res., LLC, 387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012) (employee statements given to counsel can be privileged under the subject‑matter test)
In re Park Cities Bank, 409 S.W.3d 859 (Tex. App.—Tyler 2013) (privilege applies where communications facilitate legal services; subject matter irrelevant)
In re Arpin Am. Moving Systems, LLC, 416 S.W.3d 927 (Tex. App.—Dallas 2013) (mandamus review of discovery orders)
In re Fontenot, 13 S.W.3d 111 (Tex. App.—Fort Worth 2000) (ordering production of privileged materials may warrant mandamus)
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) (principles on trial court discretion and review)