in Re Union Pacific Railroad Company
01-15-00918-CV
| Tex. App. | Nov 24, 2015Background
- On April 15, 2014 an 18-wheeler leased by Union Pacific and driven by Jeremy Ray Hampton collided with Nicholas Trichel’s car, leaving Trichel catastrophically injured; Trichel’s parents sued Hampton and Union Pacific for negligence.
- Two days after the crash Union Pacific claims supervisor William Green recorded audio statements from Hampton (the driver) and James Wilson (a co-worker/witness) while outside counsel Marcy Rothman was present.
- Union Pacific did not disclose or produce those recorded statements during initial discovery responses and did not log them as privileged; their existence was first revealed at Green’s October 22, 2015 deposition.
- Union Pacific later asserted the attorney-client privilege under Tex. R. Evid. 503 and sought to withhold the recordings/transcripts; the trial court conducted an in camera review of transcripts (not the audio tapes) and ordered immediate production on October 27, 2015.
- The Trichels oppose mandamus relief, arguing the statements are factual, not privileged, the drivers were not corporate "representatives" for privilege purposes, Rothman served as an investigator not as counsel rendering legal advice, a joint-client situation defeats privilege as between Hampton and Union Pacific, and Union Pacific waived privilege by late, intentional withholding and failure to provide the recordings for in camera review.
Issues
| Issue | Plaintiff's Argument (Trichel) | Defendant's Argument (Union Pacific) | Held |
|---|---|---|---|
| Applicability of attorney-client privilege to post-accident witness statements | Statements are raw factual accounts given to an investigator/loss supervisor in counsel’s presence and not communications for legal advice, so not privileged | Statements were made in presence of counsel and for purposes of legal defense, so protected by Tex. R. Evid. 503 | Trial court: privilege not shown; statements are discoverable because no evidence they were made to facilitate legal services |
| Whether Hampton and Wilson qualify as corporate "representatives" under subject-matter test | They were not directed by a superior to give statements about matters within scope of employment; statements recount facts of the accident unrelated to job duties | They are Union Pacific employees/witnesses and thus covered as client representatives | Trial court: relator failed to prove the employees met the direction + job-subject test; not privileged representatives |
| Confidentiality and third-party/joint-client issues (presence of Wilson; joint representation) | Presence of a third party (Wilson) and joint representation of Hampton and Union Pacific by Rothman defeats confidentiality and privilege | Presence of counsel indicates confidentiality; joint representation supports protection | Trial court: presence of Wilson and joint-client circumstances undercut any privilege; communications not confidential/protected |
| Waiver and discovery obligations (late disclosure; failure to furnish audio) | Union Pacific knowingly withheld recordings, failed to assert timely protection or provide privilege log, and did not provide audio for in camera review, thus waived any privilege and cannot obtain mandamus | Union Pacific sought to assert privilege later and asked court not to order production | Trial court: late withholding and procedural failures support production; refusal to provide audio tapes further undermines relator’s claim |
Key Cases Cited
- Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994) (mandamus is extraordinary and privilege issues are narrowly construed)
- Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) (party asserting privilege bears burden and privilege does not protect underlying facts)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege protects communications for legal advice, not underlying facts)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (corporate representative/subject-matter test for employee communications)
- In re Tex. Farmers Ins. Exch., 990 S.W.2d 337 (Tex. App.—Texarkana 1999, no pet.) (distinguishing factual investigation from privileged legal communications)
- Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993) (corporate communications and privilege analysis)
- In re JDN Real Estate–McKinney L.P., 211 S.W.3d 907 (Tex. App.—Dallas 2006) (third-party presence defeats confidentiality requirement of privilege)