CIGANA CORP. v. Spears

State, v. Mitchell notice); 821 S.W.2d finding Applicant used turned a d) (causing during ref deadly weapon pet. the com- (Tex.App. exhibited a —Austin Applicant causing contends by mission of the offense. bodily injury ... “serious failed application that the indictment in this object” fixed vehicle to collide with motor adequate notice that the State provide notice). provides weapon finding. deadly seek a See would charging allegation in the indictment Patterson, 740 S.W.2d 766 (Tex. Ex Parte causing the death of Applicant with (accused persons are entitled Cr.App.1987) mo- “causing [Applicant’s] by individual weapon deadly the use of a to notice that the vehicle driven tor vehicle to collide with if the intends to will be a fact issue State clearly gave notice that by deceased]” [the pursue entry deadly weapon of a find- Appli- attempt prove the the State would trial). 42.12, Articles 42.01 and ing at See deadly used as a cant’s motor vehicle was 3g(a)(2), V.A.C.C.P. § and, prose- weapon consequently, Beck, Ex Parte This Court stated finding as cution seek an affirmative would (Tex.Cr.App.1989), that deadly weapon. Applicant’s use of the “any allegation which avers a death was espoused in Ex requirement The notice weapon or by caused a named instrument Patterson, Parte is satisfied.1 necessarily allegation includes an Therefore, Applicant prays for the relief was, weapon % the named or instrument hereby denied. causing’ capable manner of its use ... (since cause) (Emphasis in it did death.” OVERSTREET, J., concurs in the result. Code, original). Texas Penal Section 1.07(a)(11)(B)provides weap “deadly that a “anything

on” means the manner of capable

its use or intended use is of caus A

ing bodily injury.” death or serious mo vehicle, in tor the manner of its use or CORPORATION, Cigna Fire Un CIGNA use, clearly capable causing intended Co., Cigna Property & derwriters Ins. bodily injury death or serious and therefore Co., Casualty Ins. Bankers Standard See Roberts v. deadly weapon. can abe Co., Fire & Marine Ins. Bankers Stan State, (Tex.App. 766 S.W.2d 578 —Austin Co., Co., Century Indemnity dard Ins. pet.) no Texas, Indemnity Cigna Ins. Co. Co. Beck, Ex Parte the decision in Since America, North Insurance Co. of appellate Court intermediate America, Employers Ins. North Pacific upheld many courts have cases Co., Co., Cigna Lloyds Ins. Inc. failing the indictments were attacked for Co., Lloyds, American Ina Coun f/k/a provide instrumentality notice that an caus ty Ins. Co. & Clement R. Ken Mutual ing bodily injury death or serious would III, Relators, non litigated finding at trial and an affirmative John See, sought by prosecution. e.g., State, son v. (Tex.Cr.App. SPEARS, 815 S.W.2d 707 Honorable Carleton B. 1991) (death “striking by caused with Respondent. [his] Mix notice); clearly gave feet and hands” No. 04-92-00153-CV. State, (Tex.Cr.App. 804 S.W.2d 107 Texas, Appeals of Court of 1991) (death object” caused “unknown San Antonio. State, Speering v. notice); provides (“death (Tex.Cr.App.1990) S.W.2d 36 Sept. notice); stabbing provides a knife” State, Gilbert v. (Tex.Cr. (“serious

App.1989) bodily injury caused provides

placing complainant liquid” in hot deadly weapon support ing sufficiency of a is not before us. 1. The of evidence to a find- MOTION FOR RELATORS’ ON OF MANDAMUS WRIT CHAPA, Justice. original proceeding which

This is an its subsid- relator, Corporation and Cigna iaries, protect its attor- seeks this court to product ney-client and work leges discovery proceedings. instituted underlying lawsuit was McCorkle, independent insurance Tom con- against Cigna for breach of agent, in- alleged Cigna tract. McCorkle program duced him to enter its COMPAR became an exclusive which McCorkle Cigna. insurance salesman for McCorkle joined he the COMPAR claimed that after program. program Cigna cancelled the requests for response to McCorkle’s production, Cigna offered some documents attorney-client privilege but claimed the protected producing it from certain memos in-house counsel and to and between its Cigna employees. Cigna alleged also prepared some of the documents had been involving anticipation litigation court, Judge lawsuits. The trial Carleton Cigna’s attorney-client Spears, overruled prove Cigna failed to objections because corporation were of the representatives its as defined Tex.R.Civ. 503(a)(2). Judge Spears also found Evid. excep that McCorkle established the fraud attorney-client privilege. tion to the brought proceeding prevent produc privi tion of the documents it contends are leged communications.

MANDAMUS JURISDICTION only is to cor Mandamus available by the trial rect a clear abuse of discretion Shannon, Keel, Baker Bob E. Patrick O. duty court or to correct the violation Botts, Austin, Malinak, David & Robert J. imposed by law if the relator has no other Houston, Poage, for relators. R. adequate remedy at law. v. Pack Walker (Tex.1992); er, 827 John S.W.2d Tate, Pipkin, Richard Ken- Marvin G. G. Appeals, 700 son v. Fourth Court Antonio, respon- Pipkin, drick & San (Tex.1985). An S.W.2d abuse dent. the trial court acts discretion occurs when REEVES, C.J., unreasonably arbitrarily that its de so Before and CHAPA PEEPLES, prejudicial clear and error of cision JJ. Packer, 839;

law. 827 S.W.2d at ATTORNEY-CLIENT PRIVILEGE: Walker Appeals, CORPORATE REPRESENTATIVE Johnson Fourth Court appropriate S.W.2d at 917. is the reme- major We now reach the issue of concern dy erroneously the trial has when court corporate representa- in this case: who is a granted discovery of non-discoverable docu- purposes tive for Remedy by appeal ments. in that case is privilege and must it be how established? ineffective, revealed, because once the doc- attorney-client privilege exists protected. uments cannot be Walker v. as it found in the Texas Rules of Civil Packer, 827 at 843. 501(4). The at- Evidence.

torney-client privilege is in rule 503. found DOCUMENTS CREATED PRIOR It states:

TO ANTICIPATION OF privilege A client has a to refuse to dis- THIS LITIGATION any person prevent close and to disclosing confidential communica- The first issue to decided is be facilitating purpose tions made for the of product privi whether the work professional legal the rendition of servic- lege applied generated can be to documents (1) or his es to the client between himself they for other or must lawsuits whether representative lawyer and his or his law- regard have been created to the law representative (4) rep- yer’s ... between privilege suit in the is claimed. The resentatives of the client or between the supreme recently court has held that the representative client and a of the duration, continuing is of a and client.... generat the need not have been specifically ed in defense of this case. Owe 503(b). The rule defines Tex.R.Civ.Evid. Caldwell, ns-Corning Fiberglas v. 818 including Tex. client a 749, (Tex.1991). However, S.W.2d 751-52 503(a)(1). representative A of R.Civ.Evid. protected by product privi to be the work having the client is defined as “one authori lege, services, the documents must have been creat legal ty professional to obtain or thereto, anticipation litigation. ed in of some pursuant Texas to act on advice rendered Dep’t on behalf of the client.” Tex.R.Civ.Evid. Mental Health & Mental Retar of 503(a)(2). Davis, 467, (Tex. dation v. 1989, App. orig. proceeding). —Austin The burden of falls on the seeking party asserting the and 6, 1990, February The document from Packer, discovery. limit Walker v. Kaiser, appearing Linda S. while at- 840; S.W.2d at Johnson v. Fourth Court torney product, it work does not show that Appeals, 700 at 917. This bur- S.W.2d prepared anticipation litigation— was of den can be met by presenting evidence past present. or No evidence was offered testimony, the trial court in the form of to indicate this fact. Two other affidavits, depositions, interrogatories, et dated, any- which are not not addressed to cetera, or the documents themselves. one, signed by anyone, appear not and Enters., Curry, 718 See Weisel Inc. v. legal discussions. The final docu- contain 56, (Tex.1986). S.W.2d Communications ment, 7, 1991, January is a new file dated privileged: presumed are not to be memorandum. The final documents—the presumption contained in the rule is that January undated ones and the two person lawyer who was the or the “[t]he they to disclose that were document—fail lawyer’s representative at the time of the testimony prepared by attorney. an No presumed to have author- communication is given they were. was to establish that only on ity to claim the but behalf carry its burden as to these failed of his client.” 503(c). The trial court did not abuse documents. inter- ordering production published There are no Texas cases its discretion representative of preting the definition of a these documents. requirements of rule 503(a)(2).1 rule than establish the client under Texas presume that the dissent would Dep’t Mental Health Mental Retar & is an mere that establishment Davis, (Tex. dation invoke sufficient to employee is App. orig. proceeding), the —Austin asks, there com- lege. “Is The dissent that relator not court found did conclusive has its pany in world that ly prove employees preparing meetings go to about leave their desks and report communicating and it to attor field?” do outside their We issues ney representatives. were client court know, how all not nor do we claim know representative capacity said their companies of the world run business- unclear; participation the employees was judicial es. not a notice. This is matter clearly record did not establish determine, It is us to without evi- not for investigation made the they whether on a dence, stenographer that a assistant order, they superintendent’s whether were executive, by presence mere at a his persons engage entitled to in confidential authority meeting, has clothed with been communications, they or whether were seek act on advice or to participants needed to facilitate rendition applies let- same to revisions draft legal services; record documents do not show on ters —these conclusively not did that the com establish acting their faces the drafter was munication was intended to be confidential. authority within his to seek or act on the at Id. privilege ap- advice. The misplaces in The dissent this case plies only corpo- with the clients—and proof. the burden of It seeks to create a client, representative rate a means presumption that would the burden of shift authority legal with the to obtain act on proof away party seeking deny from the is no docu- presumption advice. There discovery, contrary to legal established privileged, pre- ments there are is no Packer, principles. See Walker v. 827 sumption employee person an is a au- 840; at S.W.2d v. Fourth Johnson Court to obtain or act on that ad- thorized Appeals, employee speak 700 S.W.2d at 917. vice or that an who Rather does of away approaches 1. Commentators have labeled two cus the status the em is shifted of determining employee represen (control test) whether an is a ployee group subject to the of the corporation: subject Note, tative of the Anthony, the matter test consultation. D. Evi Thomas group group and the control test. The control Privileges—Control Group Unaccep Test dence— apparently appeared City test first in Philadel Attorney- table as Standard Assertion of of for phia Westinghouse Corp., F.Supp. v. Elec. 210 Privilege by Corporations, 13 MARY’S Client ST. (E.D.Pa.1962), prohibition 483 mandamus and 409, (1981). L.J. 412-13 Kirkpat denied General sub nom. Elec. Co. v. authors have written that rule Several rick, Cir.), denied, (3d 312 F.2d 742 cert. 372 U.S. test, 503(a)(2) adopts group spite the control 943, 937, (1963). 83 S.Ct. 9 L.Ed.2d 969 Under Supreme rejection Upjohn of the Court’s of it in theory, privileged a communication is States, 383, 677, Co. v. United 449 U.S. 101 S.Ct. "[o]nly employee empowered if is the to control (1981) (rejected group 66 L.Ed.2d 584 control part or take substantial in a decision about 503, test). supply test failed to new but Rule upon corporation may the action take they argue, focuses the status of the (or is an advice rendered authorized member of authority having to obtain or act on group possesses decision-making a au subject advice rather than on the matter of the AL., thority).” STEVEN GOODEET THE TEX GOODE, generally communication itself. See AS AND RULES OF EVIDENCE: CIVIL CRIMI 503.3; AL., supra, HULEN D. WENDORF ET § 1988). (Texas subject NAL The § 503.3 Practice OF V-32 TEXAS RULES EVIDENCE MANUAL appeared Harper matter test first & Row (3d ed.1991); Texas Rules Evidence Hand- Decker, (7th of Publishers v. 423 F.2d 491-92 book, (1983); Antho- 20 HOUSTON L.REV. 287 1970), aff'd, 400 U.S. S.Ct. 27 Cir. 91 Dixon, ny, supra; Corporate The At- Gerald G. (1971). "protects L.Ed.2d This test a com Privilege: torney-Client Alternatives to the Con- employee, at munication made the di Test, Group trol (1981); 12 TEX.TECH.L.REV. 459 corporate superior, purpose of rection for the Note, Attorney-Client Privilege securing legal subject of matter Corporate Upjohn the States, Co. v. United scope must the communication be within Context— White, (1981); SW.L.J. 935 Radiant employee’s duties and not be must dissemi Attorney-Client Privilege Burning: beyond persons Burners Still need to nated those who know (1982). GOODE, Corporation, supra, 23 S.TEX.L.J. 293 its contents.” 503.3. The fo § Jampole Touchy, with counsel is authorized to do so on are concealed.” v. be- (Tex.1984), overruled in half of the S.W.2d part grounds on other sub nom. Walker expresses The dissent concern that “[t]ri- Packer, (Tex.1992); 827 S.W.2d 833 West spend al courts will their valuable time Solito, 563 at 243. The rules of S.W.2d presiding hearing” over the establish attempt provide evidence that balance corporation’s entitlement to the delineating general exceptions to the rule court and will waste valuable resources. discoverability; but the burden of plaintiff’s case in Just as chief must be party seeking prevent remains with proven, party’s so must a entitlement to discovery. protection discovery proven. Our we turn now to the record deter- jurisprudence requires an to es- advocate mine whether satisfied its burden privilege against discovery. his tablish See repre- proving employees that its were its Packer, at 840. The Walker v. is, pursuant to rule 503: that sentatives employee having status of an as one authority that each had either the to obtain appropriate authority can be established professional legal authority or the services fairly easily through the affidavit of the to act on advice rendered counsel. It corporation’s chief executive officer. that, paramount as to that we remember consuming no more or time cumbersome issues, may factual not our we substitute establishing predicates, than such as judgment for that of the trial court. Walk- up requirements proving to admit a Packer, er v. 827 S.W.2d at 839. order business record. We do not find it to be to facilitate review of the we require party nonsense to to meet his categories: them into four have broken Further, proof. question the burden of involving persons, those unidentified those correlating wisdom of the amount and level involving corpo- identified proof required quickly with how a case ration, involving attorney those pushed through judicial process. can be communications, involving legal and those (work product). theses recognize We extremely important privi- is an Persons Unidentified lege, designed encourage the unre- disclosure of confidences category strained between The first we will consider attorney fearing the client and the covers most of the documents submitted without Cubit, an they by lawyer be disclosed for camera review. Veronica will Solito, Cigna, identified sixteen em proceedings. West (Tex.1978). However, including ployees corporation, her persons these as either goal against must be the ultimate self. She identified balanced attorney representing Cigna or as an objective discovery, of is “to seek the an few, truth, by employee Cigna. They are so disputes may so that be decided we reveal, their names and status: facts not what facts shall list what the Nein, Employee Cubit, Attorney David Veronica Ronald B. Carfagno, Employee Attorney Karen Myrter, Bechtel, Kaiser, Dwight Employee Attorney Linda Lee H. Pearce, Attorney Employee Hank Routledge, Rushton, Wolke, Jr., Employee Dan Attorney Milton S. Thomas, Angelo, Employee Attorney Charles Yvette E. Fitkin, Employee Ota, Jr., Attorney Scott Ed K. Guthrie, Attorney Brian T. Jacobs, Attorney Jane Ms. However, persons sent whom Cubit documents on their face were identify Copies manner. failed to copies of most of the documents show that attor- employee to the by an per- were written addressed to documents were these employee to one or ney vice versa representa- proven not to be sons who were person No unidentified employee. another employees of the client or even tives of the to have been the document is shown hold that corporation. here is wheth- question recipient of it. of estab- meet its burden failed to employee as an identified er the people representa- are lishing that these testimony by Ms. Cubit’s corporation authority.2 appropriate having the tives Cigna to meet proven by has been representative. Employees Identified definition more than earlier, requires proof of Cubit, did Rule 503 as stated Ms. recipient of the document attorneys and identify certain seeking protection party employee with the Several —the Routledge Grace R. they from identify To Lee H. these 6-20-90 2. As best we can Schuyler; are: Ronald B. R. McKeeta from 6-26-90 To John Myrter H. To Ronald B. from Charles 9-28-89 attachments; Myrter, with Angelo; Angelo Ronald B. Ronald B. Dan B. Rushton from To Charles H. 7-12-90 To 10-23-89 Myrter; Myrter; Meeting Myrter RVP 11-3-89 To Attendees of the B. from Charles 7-17-90 To Ronald Routledge; Lee 11-7-89 from H. Angelo; Project Team from Steve 1-31-90 To COMPAR Myrt- from Ronald B. To J.R. McKeeta 7-18-90 Flowers; er; Spike from Ronald B. 2-2-90 To McKeeta Myrter Charles Ronald B. 7-19-90 To Myrter; Angelo; Myrter; To Garon from Ronald B. 2-2-90 Jim Angelo B. from Ronald 7-23-90 To Charles Myrter, B. To Sal Calleri from Ronald 2-6-90 Myrter; attachments; with Myrter B. from Charles H. 10-18-90 To Ronald Routledge; Bailey, M. et al. from Lee 2-6-90 To Angelo; Spike Linda S. Kai- 2-6-90 To McKeeta from Ota, Shepard, Ed K. To G. et al. from 10-31-90 ser; Jr.; Wolke, Milton S. 2-7-90 To Distribution from Lambert, Ota, K. Jr. from Carl To Ed 11-19-90 Jr., attachments; with attachments; Wolke, To Distribution from Milton S. 2-8-90 from Ronald B. 12-14-90 To J.R. McKeeta Jr.; Myrter; Stephen Spike Flowers and McKeeta 2-8-90 To Myrt- Callanan from Ronald B. 1-2-91 To Tom Jr.; Wolke, from Milton S. er; Spike McKeeda from Linda S. [sic] 2-8-90 To Myrter Scott N. To Ronald B. from 2-22-91 Kaiser; Fitkin; Baylinson, To J. et al. from Lee Rout- 2-14-90 N. Fitkin from Ronald B. 3-11-91 To Scott ledge; Myrter; Spike To Distribution from McKeeta 2-20-90 Myrt- B. To Scott Fitkin from Ronald 5-21-91 document); (attached privileged to 2-23-90 er; Unaddressed, unsigned documents 2-21-90 Myrt- Scott Fitkin from Ronald B. 5-21-91 To undated, attachment; unsigned with er; To “Please See Distribution" from 3-2-90 Coupland from Linda S. To Warren 6-27-91 Angelo; Charles H. Kaiser; Myrter Charles H. To Ronald B. from 3-5-90 Ed; To Scott from 7-1-91 Angelo; Spike McKeeta from Linda S. Kai- 8-21-91 To Kaiser; Taylor S. To Chris from Linda 3-9-90 ser; Linda S. Kai- To Don Hummell from 3-12-90 Underwriting Managers and Distri- To 9-3-91 (attached privileged docu- to 5-17-91 ser Betchel; Managers Dwight from bution ment); Edwards, David et al. from 11-8-91 To Don from Linda S. Kai- To Don Hummell 3-12-90 Nein; ser; Myrter Spike Ronald B. from 4-25-XX To Myrt- Ronald B. To J.R. McKeeta from 4-26-90 McKeeta; Clyde; Spike To from 5-7-XX Myrt- from Ronald B. 5-1-90 To J.R. McKeeta Unaddressed, unsigned, handwritten er; 5-22-XX document; from Dave Due- To John R. McKeeta 5-11-90 Unaddressed, unsigned, handwritten los; 6-4-XX document; Duelos; Spike from Dave To McKeeta 5-15-90 Wolke, Carfagno; To Charlie from Karen Undated Milton S. To Distribution from 5-30-90 attachments; Jr., Dave Duelos. To Ron from Undated Attorney Attorney to prove recipient em- privilege must representative: ployee to be a appear to have Several or to act person was authorized to obtain to another written been Clearly, attorney within the of these There is no evidence Weisel, can following at 718 S.W.2d so authorized. Ms. Cubit employees were of the documents ascertain from the face intended testified that the documents were privileged pursu that these are themselves among parties to be circulated 503(b)(5)(among law ant to Tex.R.Civ.Evid. one need to know. She identified would clients). As to yers representing the same Nein, employee, David as “a client.” How- the writ of mandamus these ever, asked what was when the trial court granted.4 client, attorney, Cigna’s who was meant witness, responded, “the defen- not a dants_ FRAUD regard in-house at- They —the McCorkle, party, also chal the real as their torneys regard these individuals attorney-client lenged Cigna’s use They call them their clients.” clients. in rule privilege on the exclusion based attorney’s regard Even were we fraud). (furtherance 503(d)(1) of crime or proper admissible testi- comments as engaged in fraud alleged Cigna He employ- mony, it fails establish him enter the contract when it induced required by the ees were authorized as Cigna’s insurance to become exclusive attorneys corporation may at the rule. The Therefore, argues, he has salesman. corporation’s regard all or some of the it acted fraudu lost its because clients, their own denomi- employees as but lently. them into authorized nation does not turn persons. exception Rule 503 is an Further, Weisel, 718 S.W.2d at while privilege. Pursuant aide permits us to look to the documents to rule, the ser is lost “[i]f determining the existence of us sought lawyer were or ob vices of the lege, do not establish these documents anyone to commit or tained to enable or aid their faces. requisites of rule 503 on knew or plan commit what the client a ... reasonably should have known carry its burden of

Cigna failed 503(d)(1); Free fraud.” establishing to these docu- Bianchi, (Tex. man v. ments.3 from Veronica A. Cu- 10-30-91 To David Nein are: These documents bit; Angelo Ronald B. Charles H. 11-22-89 To Myrter from Hank Pearce. X-X—91 To Ronald Myrter; Myrter Charles H. Ronald B. 7-23-90 To are: 4. These documents Angelo; Angelo from Ronald B. To Charles H. 7-31-90 Myrter; from Ronald B. To Ed Ota 12-29-89 Myrter; Routledge from Ronald B. To Lee 1-16-90 Pearce; Hank To Dan Rushton from 9-28-90 Myrter; Myrter to Ron from Fax coversheet 10-31-90 Myrter S. Kai- Ronald from Linda 2-6-90 To Angelo; Charles ser; Angelo E. from Yvette 11-12-90 To Charles Routledge Myrter from Lee 2-23-90 To Ron Thomas; (excluding attached document of 2-20-90 Pearce; from Hank 12-27-90 To Dan Rushton McKeeta); Spike Distribution from Myrter N. from Scott To Ronald B. 2-20-91 Guthrie; T. To Jane from Brian 3-2-90 Fitkin; Kaiser, Myrter, & B. Wolke L. R. 3-7-90 To Pearce; Myrter To Ron from Hank 3-4-91 Routledge; from Lee Myrter from Hank To Ronald B. 4-30-91 Routledge Ronald B. Lee from 4-26-90 To Pearce; Myrter; Myrt- B. Pearce from Ronald To Hank 4-30-91 Routledge; Myrter from Lee 12-27-90 To Ron er; Routledge Ronald B. To Lee H. from 1-7-91 B. from Ronald To Scott N. Fitkin 5-17-91 Myrter; Myrter; Routledge Milton S. H. 6-6-91 To Lee to Scott Fitkin Fax coversheet 6-27-91 Wolke, Kaiser; Jr. Linda S. 1991, orig. pro CONCLUSION App. [1st Dist.] —Houston claiming exception ceeding). party The carry its burden failed privilege bears the burden of estab sought to it as to most of the documents lishing prima proving a facie case “a discovery. cannot protect from sufficiently serious to defeat the violation its discre- say the trial court abused Bianchi, privilege.” Freeman as to most of ordering production in tion prima facie case re S.W.2d at 861. However, Cigna did estab- the documents. proponent met of quirement is when the protection of the documents right lish its establishing the elements of fers evidence attorneys. to its own written ongoing fraud and that the fraud “was fraud ex- failed to establish the McCorkle committed when the document about attorney-client privilege. ception to the (emphasis at 861-62 prepared.” was Id. granted part of mandamus is writ Therefore, added). allegation in the a mere attorney to the pleadings of fraud are insufficient: (identified 4) and is denied as footnote alleged to occurred must have fraud have the documents. the remainder of during occurred at or the time the docu prepared perpe ment and in order to was PEEPLES, Justice, dissenting. plain the fraud. The trate fact respectfully grant I I dissent. would tiff’s cause action involves fraudulent to most of the documents. writ as conduct is insufficient. The agree majority I with the that the law- is lost when the com privi- yer-to-lawyer communications are munications or services were obtained in leged respondent’s order sustain- plan commit or fraud. and that order to commit a 503(d)(1). ing exception The court the crime-fraud to the See may look to the documents themselves to lege absolutely unfounded. prima determine whether a facie case has apparent disagree majority’s I with the Bianchi, been established. Freeman v. holding specific there must be evi- Only 820 S.W.2d at 862. when the trial read each docu- dence that each who relationship court finds valid between representative. ment must be Under sought produced document to be and the Enterprises, Curry, Inc. Weisel

prima facie violation is lost. (Tex.1986), may look a court at 861. Id. at the documents themselves to see wheth- petition McCorkle’s first amended al- er has been established. leged that he entered into an amendment of Several documents are revisions law- original agreement Cig- COMPAR yers proposed business letters written Cigna’s na as a result of fraud and that instance, by nonlawyers. the non- each breaching fiduciary actions in and con- lawyer drafted a letter and sent it to house relationships parties fidential consti- counsel for comments. Counsel made sev- tute fraud. The trial court constructive eral and returned the letter to the revisions found that “Plaintiff has met his burden of nonlawyer. In these circumstances it is proving exception the fraud to the attor- nonlawyer was authorized obvious that ney-client privilege contained Rule to seek the is inconceivable 503(d)(1)of the Texas Rules of Civil Evi- attorneys that in-house revise letters dence.” give this kind of advice to sup- McCorkle offered no evidence that for it. Un- who are not authorized to ask ports finding the trial court’s of fraud as Weisel, I would hold that as to such der by rule The documents them- set out privilege was established. documents the attorneys’ selves do not reveal that apparent most It is likewise services were obtained to enable or aid the such as discussions commission of a fraud. The trial court participants legal problems that sur- about finding its discretion in that such abused recipi- company meetings, in faced is fraud had been established because there legal memos were authorized to Cigna sought lawyers’ ents of no evidence that legal thoughts of house coun- to commit a fraud. receive advice matter, recipients obviously employ- place sel. The were or and the conduct takes meetings legal ees who had attended where “is continues thereafter. But any issues were discussed. Is there com- absolute as to communications made with pany has the world that its past attorney as to transactions go abandon the work at their desks and sit State, offenses.” Helton v. through meetings about out- issues 644, (Tex.Crim.App.1984), quoting 645-46 field, side their and then sends them mem- Williams, 297, Williams v. os from counsel about the issues dis- 1937, writ) (em (Tex.Civ.App. no —Amarillo meetings? majority says cussed at the added); accord, phasis Cleary, Edward W. implicitly presented should have McCormick’s Handbook Law of Evi testimony compa- or an affidavit about the 95, (2d ed.1972); at 199 81 Am. § dence ny’s practice. That is nonsense. (rev. 399, Witnesses § at 359 ed. Jur.2d majority suggests that all the com- 1992); Wigmore, H. Evidence John pany present testimony needs to or do is (McNaugh § Trials at Law Common Undoubtedly, affidavits. when businesses 1961); see also Anderson ton ed. rev. opinion they read have will come to State, 98 Tex.Crim. 159, 266 S.W. testimony stating court with affidavits and State, (1924); 382, 222 Ott v. 87 Tex.Crim. each person copy who received a (1920). Merely S.W. 262-63 to defend privileged each document was authorized trig alleges a lawsuit that fraud does not in- to obtain or act on the advice of the did, ger exception. plaintiffs If it lawyer. spend house Trial courts will even routinely defendants alike could discover presiding more of their time valuable over attorney-client communications about hearings. pay these Clients will their law- underlying by simply alleging transaction yers Litigants to be there. with cases to fraud, and the try judge on the merits will wait while the indeed. would be hollow ever-lengthening discovery tries matters. suggest The documents do not appellate The next issue will be whether an way attorneys that CIGNA’s in-house appellate court must defer to a trial court’s helped plan in the it to commit or a fraud evidence, company’s refusal to believe the future. even if it is uncontradicted. will our stated, grant I For the reasons would legal system spin continue to out of con- trol, diverting mandamus as to most of the documents. judicial scarce resources to peripheral issues.

Concerning the trial fraud find- court’s

ing, I note that the documents show defending against itself CIGNA lawsuit, fraud not that CIGNA

McCorkle’s sought plan to commit or advice MARKETING, COASTAL REFINING & fraud. INC., Appellant, exception the attor- The crime-fraud ney-client privilege provides: LATIMER, George Wayne is no the services There ... [i]f al., Appellees. et sought lawyer were or obtained No. 13-92-132-CV. anyone plan aid to commit or enable or commit what the client knew or reason- Texas, Appeals Court of ably a crime or should have known Corpus Christi. fraud. May 1992. 503(d)(1). exception This prospective carefully apply worded to Rehearing Overruled Oct. applies where the crimes or frauds. client, knowl- actual or constructive ongoing conduct

edge contemplated fraud, consults an

is a crime or

Case Details

Case Name: CIGANA CORP. v. Spears

Court Name: Court of Appeals of Texas

Date Published: Sep 21, 1992

Citation: 838 S.W.2d 561

Docket Number: 04-92-00153-CV

Court Abbreviation: Tex. App.