*1 ENTERPRISE PRODUCTS
COMPANY, Relator, Gary
The Honorable
SANDERSON, Respondent, Ling,
David G. and Wanda Real
Parties in Interest.
No. 09-88-008 CV. Texas, Appeals
Court of
Beaumont.
Sept. 1988. Houston, Kronzer, Michael James
W. Houston, Tucker, Hendryx, Weitinger & Strong, Nelson Pipkin, Ledyard, David W. Bissell, Beaumont, Jenkins, Benck- Gail & Nathan, enstein, Beau- Norvell, & Bernsen mont for relator. Hulett, Jr., Hulett, Roth &
Jimmy D. Williams, Beaumont, R. McGown Michael Green, Weller, Wheelus and Edward H. Green, Beaumont, respondent. OPINION BROOKSHIRE, Justice.
A Petition Mandamus. for Writ Com- early Relator, petitioned Ninth pany, Appeals issuance of a Writ for the Gary require Honorable Mandamus Sanderson, Dis- 60th Judge of the Judicial County, to vacate trict Jefferson Judge order December his dated required production order Sanderson’s he and items of certain documents *2 fact, appro- findings pursuant that certain deemed to be discoverable under sought and to be priate the documents materials Texas Rules Civil Procedure. in prepared had not been antici- discovered fol- judge’s made The district order was litigation. the main pation actual One of by filed lowing request production a Lings’ Judge position is that thrusts of the Ling wife, Ling, des- and David G. Wanda in did abuse his discretion Sanderson parties in Ba- ignated the real interest. as cer- requiring production his order examining Judge Sanderson, sically, items; documents, and tain materials documents, pleadings, and the affi- hence, There- the same are discoverable. davits, hearing arguments of able and fore, Lings should not maintain that we counsel, findings He made certain of fact. Judge Sanderson’s order. vacate in essence found that the documents that sought to be had not and items discovered report from conclude that the We anticipation prepared (which actual 18,1987 been McCormickdated June Bob He Rela- litigation. further found that filed) con after the lawsuit was which was that proving tor failed its burden of summary statements a brief of the tained documents items submitted were of the report transmitted in that would that were in ef- privileged. judge ruled district provided as for under TEX.R. privileged be the Relator failed in its bur- fect that had 166b, being dis protected from CIV.P. valid, to establish factual basis den 166b(3)(d),being a com covery Rule under demonstrating clearly the documents represent agent an munication between exempt items were from the and party to a to a lawsuit which was ative pre-trial stage under the procedures at the or the subsequent to the occurrence made Procedure. appropriate Rules of Civil upon litigation which the was transaction litigation and also defense of such based A Statement Some filed. have adhered had been We Background Facts 166b(3)(d) as in December Rule written However, copies of the actual Ling mid-May of 1987 was David G. McCor accompanying the Bob statements Ling Harvey employee an Contractors. discoverable. report, mick we deem to be working Products Enterprise at the was pictures and Enterprise agrees that facility. ap- Company’s facility was This be or and will photographs discoverable operat- and parently either owned or leased inspection produced for have been Enterprise Company. by ed Products Enterprise por concedes relevant copying. Ling, employees, certain other log or record that was tions of the routine replacing a Sud- the act of certain valve. day-out plant en day-in kept explo- explosion denly occurred. guard are trance discoverable. alleged Ling to be sion is have caused edge platform on forced over the of a Furthermore, Enterprise, Relator Ling positioned for his task. which he was G. it has a statement of David states allegedly ground landed on the below to Mr. produced had been Ling which Ling avers a broken neck. David sustained attorneys immediately prior to the Ling’s he probability that in reasonable medical arguments before us. We conclude oral virtually the quadriplegic for remain a will the wit statements taken from that the Following the of his natural life. balance prior to the which were obtained nesses sent their filing litigation, Ling and wife underlying filing of lawsuit of the date production of considerable request for the on record discoverable under this then- related matters materials One, ground. following timely Enterprise. Enterprise defendant not shown that the trial record it is answers. objections as well as filed certain by finding his discretion abused Protec- also filed Motion for Enterprise and materials these statements tive Order. of the anticipation obtained in taken or of the claims the basis held. made hearing defense A was docketed this deci litigation. reach Thereafter, filed presiding judge concluded later cogent sion compelling because of the Chapman, vits were filed Frank who opinion of Texas in employee Court was an Stringer Ap v. The Eleventh Company Robert or Bob McCor- (Tex.1986) peals, 720 mick, S.W.2d wherein investigator who was an who had basically pragmatic ruled in a contacted explosion been soon after the filed, legit sense that until the lawsuit was by Chapman. Chapman occurred *3 anticipation litigation imate burden was the Director of Enterprise Claims for Prod- prove. Stringer, some and to difficult He was soon ucts. notified after this seri- collided, being engines two railroad had explosion fire and ous had occurred. Mr. operated companies. by different railroad Chapman immediately contacted Mr. Hen- supra, We will write more about Stringer, dryx Hendryx at home. Mr. recuper- was hereinbelow. ating from surgery knee and apparently just had been hospital. released from the correspondence The and notes of Mr. Hendryx physically Since unable Enterprise and its communication between scene, go to the to it was decided that Mr. attorneys or insur as well as its Chapman immediately go would the to ers, that made after date the were the investigation. Chap- scene and conduct the underlying litigation filed, conclude we then man obtained the contract services of subject privileged are and not to quickly McCormick who went to the holding apply to later com scene. parties the re munications between same garding progress the the lawsuit. doWe not decide that the date filing underlying litigation is actual the Concerning Paragraph Enterprise in IV always the can date before which there Company’s Products for Protective Motion actual, anticipation never be reasonable Order, suggest proper disposi- we that the litigation. judge the perceive district Lings’ pro- concerning request tion the for no manifestation of a suit found outward duction documents relative to the main- filing being prior filed It was to its date. production question tenance of the in unit Lings certainly position the clear the 23rd, prior May and of the said 200 unit to any there had outward man- that not been explosion 1987—the date of the —would the any to time ifestation occur at before Enterprise Company to have the Products filing date of suit actual documents, items, pull these materials and attorney for the dis- courthouse. The being apparently mainly purchase orders covery motion stated: year for the also for invoices 1987 and asking anything for we’re not years prior at ar- to 1987 its “off-site “[A]nd any have or have that the defendants chives”. When these relevant documents investigation they may have done pulled up have been lifted or the off-site at All the time the suit was filed forward. by archives or off-site boxes and so marked Products, want was done to suit Enterprise we what then it will be the being filed. So there were not outward Lings attor- responsibility of the and their by plaintiffs.” made manifestations neys to visit these off-site archives copy suggest cost of same. We made, Furthermore, compellingpoint equally copying the same will be shared think, by attorney arguing for the we Lings Enterprise Prod- between discovery motion in that the affidavits suggest pulling ucts. We also the cost court Enter- provided the trial were to on these documents will be shared relevant signed September prise were equal Lings and En- basis between the some three or four months which was terprise But matters Products. explosion. fire and counsel should be addressed decided position takes Respondent/Real Parties judge. trial to have effica- for these affidavits real they made out cy,
An
filed
the district
should have been
affidavit was
before
discovery and
signed
that the
Hendryx
the attor-
time
judge
a Mr.
who was
is to
Also,
progress.
That
affida-
ney
Products.
been
The Court further finds
say, that
affidavits should have
that Plaintiffs
documents,
any
not
audio
made, signed
early
are
entitled
May
sworn
tapes
tapes
video
were obtained
Again,
lay
1987.
do
down
June
on
after suit was filed
June
any such hard and fast rule but we think
therefore, ORDERED,
Enter-
gives
It is
September
this fact
affidavits
Inc.,
re-
prise
Company,
is not
rational,
leeway
rea-
considerable
and some
produce
inspec-
quired
items for
judge exercising
the trial
sonable basis for
copying
tion or
that were made after
Again,
one
his discretion as he did.
it is
12, 1987.
June
indicium that the trial
did
abuse
his discretion.
166b(3)
Texas Rules of Civil Procedure
“Exemptions”
entitled
states:
actually
on June
lawsuit was
filed
following
“The
matters
not discover-
modify
1987. We reform and
certain
able:
on
paragraphs
page
judge’s
2 of the trial
*4
(a)
product
attorney;”
the work
an
23,
1987 to read as
order
December
166b(3)(a)
follows:
to Rule
We adhere
as written
December 1987.
copy
any
or
1. A
and all documents
Nevertheless,
must
that
conclude
any
reports prepared by
departmen-
Chapman’s investigation and Bob
Frank
personnel
Enterprise
tal
Products
(performed
investigation
be-
McCormick’s
Inc.,
any
entity
Company,
or
other
12, 1987)
prod-
fore June
the work
reflecting
analysis
their
of what
attorney.
an
Nor are
investi-
uct of
ignition of
fire and
caused the
gations protected from
under
disclosure
explosion provided
they
were
attorney-client
Through no
privilege.
12,
prepared or
before June
obtained
fault,
and
attorney
contacted did not
1987;
investigations,
al-
could not conduct
copy
any
2. A true and correct
and
though his
were
advice
instructions
Enterprise
all
statements which
to his
followed.
confined
Inc.,
Company,
anyone
Products
or
bed.
acting in
its behalf
obtained
Although
by the
the case was decided
persons
any
regarding
accident
1977,
Texas
we think
Supreme Court of
lawsuit, pro-
made the
of this
basis
was Allen v. Hum
a landmark decision
vided, however, that the same were
(Tex.1977).
798
Justice
559 S.W.2d
phreys,
taken or obtained
to June
Steakley
clearly
concisely
wrote
1987;
court:
copies
any
True and
3.
correct
stated,
privilege can be
“Simply
tapes
tapes
audio
made
all video
or
(1)
coexist:
invoked where three factors
Compa-
sought to be discovered
the material
Inc.,
ny,
anyone acting
or
in its be-
(a)
non-
statement
either
written
regard
half with
to the
made
accident
witness, (b)
expert
a written communica-
suit, provided that
the basis of this
agents, representatives, or
between
tion
made, recorded, got-
the same were
suit,
party
or
employees of either
1987;
taped prior
ten
June
(c)
between
written communications
representatives, or
agente,
party and his
documents, tapes,
All
and video
(2)
employees;
the statement
their
tapes
produced
audio
subsequent
is made
communication
in camera
the district court
upon which
the occurrence or transaction
however, that
inspection, provided,
(3)
based;
suit is
the statement
provisions
num-
of the first three
is made in connection
or communication
immediately
paragraphs
above
bered
de-
prosecution, investigation, or
fully
are to be
observed.
particular
or in connec-
fense of the
suit
investigation
particu-
specifically
the trial court’s
tion with the
affirm
it arose.”
out which
ruling quoted
lar circumstances
as follows:
however,
controlling
certainly
A
case most
the fact
spectacular
that a
Stringer
Ap
v. The Eleventh Court
freight
collision of two
trains
owned
peals,
issues of and strict may jury to be instructed that have
they may consider the evidence of subse-
quent only remedial issues as to the
product easily While this is claims.
done, jury surely most be con- will limiting may
fused instruction disregard even it in frustration.” R.P., In the Matter think, however, Juvenile, the restrictive Appellant, We judge’s dates set out the trial order will v. discovery of prevent nondiscoverable Texas, Appellee. The STATE of Texaco Refin compare matters. See and Sanderson, supra. ing Marketing No. 04-87-00588-CV. propose a modification the trial Texas, Appeals 23,1987, consist- court’s order December San Antonio. opinion. ent with this Sept. We direct and order that the trial court Paragraph reconsider IV the Motion for 21, 1987, September
Protective Order filed producing
as to the method cost of
copying the documents. We see relevant wrong equally
nothing sharing be- parties producing
tween the costs of copying these documents. But locating, producing matter of
whole
copying initially is to be addressed judge.
district
Writ of Mandamus is denied.
DENIED.
BURGESS, Justice, concurring and
dissenting.
I concur the denial the writ
mandamus. majority portion
I to that dissent relating production of
opinion main- *8 im- If the matter was
tenance documents. order, upon in the trial court’s
pliedly ruled has not shown abuse
then relator left unre- If the matter
discretion. my
solved, highly inappropriate, it seems appellate intermediate
opinion, for “suggest” to the trial court how
court to accomplished should be This is
how costs should taxed.
