In Re Bexar County Criminal District Attorney's Office

BEXAR IN RE COUNTY CRIMINAL

DISTRICT ATTORNEY’S

OFFICE, Relator.

No. 05-0613. of Texas.

Supreme Court

Argued Sept. 2006. 4,May

Decided 2007.

Rehearing Denied June Reed, Dolan At- County Susan Criminal District other to the Bexar Sheriffs Office Brown, torney, F. Clarkson Assistant regarding barking such incivilities as dogs, Attorney, Criminal District Thomas W. lines, yelled, obscenities cut cable strewn Brown, Gendry, Damy Gendry Claudia & grass clippings, yard, in a trash left rocks P.C., Antonio, Spargue, San for Relator. fence, thrown at a water sprayed cars grass, sprinkler and and a that ran too Wilson, Sanchez, Robert W. Mark A. time, long puddle. a Each and created Gale, Christopher John Law Offices of Gale, Sañchez, responding officer talk to P.L.L.C., would both sides Wilson & San An- tonio, Party prepare report. for Real In Interest. and an incident occasion, alleged On one Travis Blank opinion Justice WILLETT delivered the Crudup threatened to kill him. Fol- Court, HECHT, in which Justice DA lowing complaint, charged this O’NEILL, Justice Justice Crudup making terroristic threats.2 WAINWRIGHT, and Justice BRISTER During investigation, their members of the joined. DA’s Office interviewed Blank on several This case im- presents issue of first prosecution occasions. The DA’s file con- pression: work-product privi- whether tains department reports, typed sheriffs lege protects prosecutors testifying memos, Blank, internal letters written in a prosecution they malicious suit when and handwritten notes from interviews and already prosecution have released the file. telephone by the prepared calls DA’s of- County Relator Bexar Criminal District fice. One set of notes detailed series of Office”) (“DA” Attorney’s Office or “DA’s calls between Blank and Assistant DA provided prosecution party file to real Robert The file McCabe. indicates Crudup, interest David who had sued Cynthia testify Blank refused to or to allow Travis prose- relator Blank for malicious cution. DA Crudup subpoenaed represen- trial, testify despite McCabe’s warn- testify, grant- tatives to but the trial court ings drop that the would DA’s Office Quash ed the DA’s Motion to and For they charges against Crudup if did not appeals Protective Order. The court of testify. disagreed and ordered the trial court to dropped The DA’s Office indeed

withdraw its order.1 The DA’s Office and charges, Crudup sued the Blanks for Blank now seek mandamus relief this prosecution. malicious The DA’s Office Court, given the record and circum- complied subpoena with a duces tecum and presented, conditionally grant stances we prosecution Crudup turned over its file to it. Crudup subpoe- for use in the civil case. I. Factual and Procedural McCabe, DA, and a naed another assistant

Background investigator at trial. The subpoenaed indi- DA’s Office and the three feuding Crudup David and his wife were Quash and For viduals filed a Motion neighbors Cynthia Blank and her teen- Order, arguing that the Protective work- age Crudups son Travis. The and the complained repeatedly product privilege precluded Blanks about each S.W.3d47, 51. the circumstances of the threat. See Tex. Pe- nal Code 22.07. § ranges 2. This crime from a Class B misde- jail felony depending upon meanor to a state all decisions made privilege covering at- sought. Crudup’s response Crudup DA now seeks office.”4 The than evidentiary support no other tached file. relief this Court. produced prosecution mandamus previously was not insisted-the the DA product, event II. Discussion claim disclos- any privilege waived A. of Review Standard The trial court ing file. non-evidentiary hearing conducted brief when grant mandamus relief We granted the DA’s motion from the discretion trial court has abused its hearing, Crudup’s At the counsel bench. appellate adequate has no elaboration, that complained, without a remedy.5 prong, to the first lower As “damaged my court had case” and “severe- determining no discretion court has my case.” ly handicapped limited is, when the law is the law even what reconsideration, Crudup filed motion for second, we have unsettled.6 As to the hearing and attaching transcript of the appeal inadequate held that repeatedly testimony that he needed the from arguing disclosure erroneously a court orders when fully personnel develop” the DA “to of information.7 mali- prove case and to the elements of at- prosecution. cious The motion also King Not B. The Decision Does prosecution tached notes from the file Testimony Mandate McCabe, purporting written ele indispensable is an Causation rea- “state the reasons” and “describe the case. prosecution ment of this malicious the criminal son” case was dismissed. King, “to recover for explained As we again trial court entered a written order when the decision prosecution malicious effectively granting the DA’s motion and discretion, another’s prosecute is within for denying motion reconsideration. that proving has the burden of plaintiff granted Crudup of appeals The court would not have been made that decision relief and the trial mandamus directed supplied information but for the false The court of court to withdraw its order. Crudup prove must the defendant.”8 So appeals King concluded that under v. Grah the Blanks furnished false only that pro that Crudup prove am3 must Blank’s information, infor also that this false but information was the deter vision false prosecuted.9 Crudup mation caused to be mining bring in the decision to factor “[ujnder attorney King, County In Kerr district prosecution, the criminal and that prosecu- malicious testified work-product these circumstances Sutton Graham and brought plaintiffs tion operate does not as a blanket case Co., 295, curiam). (Tex.2003) 298 Ford Motor 211 S.W.3d (per 7. In re 3. 126 S.W.3d 75 curiam) (Tex.2006) (per (orig. proceeding); In 4. 179 S.W.3d at 50. Bass, 735, (Tex.2003) (orig. 745 re 113 S.W.3d proceeding). 124, Co., 148 S.W.3d 5. In re Prudential Ins. (Tex.2004) (orig. Walker proceeding); 135-36 at 78. 8. 126 S.W.3d 833, Packer, (Tex.1992) 827 S.W.2d 839-40 v. (orig. proceeding). 76; Browning-Ferris In also 9. See id. at see dus., Lieck, 292-93 Prudential, 881 S.W.2d Inc. v. (citing Huie 148 S.W.3d at 135 (Tex. 1994) DeShazo, (Tex. (citing (Second) 927-28 v. Restatement (1977)). 1996)). g § 653 cmt. Torts defen- rendering judgment Wren.10 for not announce a waiver or blanket wrote, dants, we and Wren of- plaintiffs subpoena prosecu- “Graham authorize by opin- fered no evidence whatever —as plaintiffs tors whenever wish to Sutton, example ion bolster the causation of their mali- element —that prosecute decision to was based prosecution cious lawsuit. supplied by King

information that Graham King and Wren assert false.”11 The C. Cannot Overcome King decision and our of the record review Privilege DA’s Testimonial do not reveal whether Sutton testified vol- untarily pursuant subpoena. to a Supreme The United States recognized work-product first Court Crudup argues necessary ele- “[a] years ago Taylor, doctrine Hickman ment for malicious is the discovery protect and our state rules 1 Attorney’s of- District prepared by those materials or at the re fice,” and insists “has ruled that this Court litig quest attorney anticipation of an of the District Attor- As explained, pri we have “The ation.14 ney’s office is an ele- necessary mary purpose of the rule is ment of malicious This is prosecution.” processes, to shelter the mental conclu assuredly wrong; in nothing King sug- sions, attorney, legal and theories of the plaintiffs gests provide that must direct providing area within which prosecutors evidence of causation or that analyze lawyer prepare can and his or subpoenaed can be live testimo- provide in her case.”15 The continues ny regarding anything else. causation or definitely beyond for litigation King, attorney testify, the district did originally prepared.16 the materials were weighed and as this Court but-for causa- Moreover, the more than privilege covers case, in that we testimo- tion noted that his attorney’s just documents: extends to an ny opined nowhere “that the decision conclusions, impressions, opinions, mental prosecute was based on information theories,17 as the selection legal as well that supplied [plaintiffs] [the defendant] 12 The work ordering documents.18 false.” assert was summarized what We than the attor product privilege broader say attorney the district did and did not it includes ney-client privilege19 because merely and mentioned his as preparation all communications made in way proved one causation could have been trial, interviews including attorney’s in that case. Our reference to the district however, attorney’s King, parties non-party did with witnesses.20 S.W.3d at Id. 751-52. 10. 126 78-79. 16. at added). (emphasis 11. Id. at 78 192.5(b)(1). Tex.R. Civ. P. 17.

12. Id. Valdez, 863 18. Nat’l Union Fire Ins. Co. v. 495, 509, 385, U.S. 91 L.Ed. 13. 329 67 S.Ct. (Tex. 458, 1993) (orig. proceeding) S.W.2d 460 (1947). 451 Hickman, 511, (citing 329 67 S.Ct. U.S. 385). 192.5(a)(1). P. 14. TexR. Civ. Tex.R. Evid. 503. 19. See Caldwell, Owens-Corning Fiberglas Corp. (Tex.1991) (orig. pro S.W.2d 818 750 Hickman, Axelson, 192.5(a)(l)-(2); (citing McIlhany, P. ceeding) 20. See Tex.R. Civ. Inc. v. 512-13, (Tex.1990)). U.S. at 67 S.Ct. 385. information learned investigation, ease, inal all of pending In the investigation, and the the crimi- during work in connection with Office’s rele- against Crudup, and case all constitute proceeding drop nal decision above, criminal bring to the decision to and while vant as defined work him, constitutes charges against unquestion- file prosecution producing namely prepared or “material product, the documents protection of ably waived anticipa- developed impressions mental does themselves, disclosure that selective for trial” or communi- litigation tion of deposition provide DA staff to oblige anticipation litigation cations “made testimony interpreting, explain- represen- among party’s or for trial ... elaborating matters ing, or otherwise 192.5(a). totality tatives” under Rule dissent notes in the file. The contained matter, Crudup work on the of the DA’s may quiz well want to Crudup consisted evidenced unrelated to various matters staff about charge of a criminal preparation of the prosecution against specifics litigation the criminal against Crudup and procedures “testimony general him: indi- that followed. The trial court record of the DA’s office for procedures such as cates that was not interested complaints, processing of criminal intake testimony from eliciting general factual complaints, investigation whether of those Of- regarding DA witnesses how the DA’s facts of cases before is made into the receives, processes, investigates fice instituted, and are proceedings criminal only subpoe- complaints. Crudup made with typically whether contacts are directly employees naed DA who had been pro- before criminal complaining witnesses criminal case to involved during proceed- ceedings begun, are the civil case. He informed district proceedings are com- ings, or after court, response in his to the Motion to Crudup, at 193. pleted.” Order, Quash and For Protective he however, expressed slight- has never testimony was interested their because matters, general in such est interest DA’s office had numerous conversa- “[t]he the record might game; well be fair Cindy tions with Defendant and because him show his briefs to this Court they these conversations are fact witnesses testimony solely eliciting focused to the statements made Defendant Cin- surrounding specific events regarding dy.” He stated his motion for reconsid- insisting case and that with- his criminal testimony eration that he needed the details, “he will not case-specific out such “present order to evidence of the conduct every element of mali- prove be able to criminal case of the Defendants before the prosecution.” cious present initiated” and also “to evi- the Defendants dence of the conduct of 192.5(b)(1) everyday distinguishes Rule proceed- during the course of the criminal product” from “core work product work especially as to the reason of the ings, that the latter —defined and makes clear In his dismissal of the case.” attorney’s repre- attorney’s “the or Court, to this he stresses that briefing impressions, opinions, mental sentative’s prove the testimony, without DA he cannot conclusions, legal theories”—is inviolate prosecution. of malicious specific elements discoverable,” subject flatly “not inapplicable that are exceptions case, narrow con purposes For of his civil work is sacrosanct of the crim- here.21 Core versations made the course 192.5(c) exceptions work-product privilege for: provides to the 21. Rule protection impermeable. ning enough. Assum- is not Substantial need is and its testimony ing arguendo Crudup that the desire. Prosecu- merely substantial product, seeks is non-core work which tors could win more convictions absent the doubtful, heavy Crudup still bears seems Amendment, priest-penitent Fifth or the he must that he “has sub- burden: show privilege, the marital but we privilege, or testimony in the stantial need” for and others safeguard privileges these be- that he “is preparation of his case and good. they greater advance a societal cause hardship unable without undue obtain every litigant, Crudup Like wants to of the material equivalent the substantial lawsuit, so, understandably strengthen his by other means.”22 trump but that cannot settled justify wide-ranging excavation of granted court said it appeals The prosecutorial decision-making. because “the DA’s office mandamus relief showing has failed to meet its burden inability prong The second subpoenas.”23 This quash basis to equivalent to obtain the substantial record, briefing, misses the mark. above, stated requested material. As Crudup continued to argument, and oral prosecu Crudup cannot win his malicious interrogate demonstrate his intention to showing that false infor suit without tion case-specific the DAs about details. Such by the Blanks supplied mation unquestionably require would prosecute.24 the DA to Office caused which, product, the disclosure of Office, however, already provided has minimum, places at a the burden on Crud- equivalent of with the substantial a “substantial need” for the up show has, subpoena to a testimony: pursuant inability to obtain its tecum, prose its entire duces turned over by other means equivalent substantial notes related to cution which contains hardship.” without “undue department investigation, sheriffs Blank’s affidavit complaint reports, Travis Addressing prong, the first “sub detailing Crud- department the sheriffs need,” Crudup stantial contends that he threat, log of and McCabe’s up’s alleged of his not be able to an element “will that ulti Cynthia Blank conversations with causation) (namely, case” without testimo crimi mately him to dismiss prompted sure, To be ny prosecutors. from the of these if not all charges. Many nal DA testi granting Crudup access to live into evidence ei come court, might documents chances mony might improve his as an non-hearsay use or litigant’s through a civil odds of win- ther improving but 503(d) (1) the Rules of privilege of under Rule in Rule information discoverable witnesses, experts, concerning trial 192.3 Evidence. statements, contentions; (2) 192.3(h) witness and under Rule A "witness statement” disclosed under Rule trial exhibits ordered and re- signed statements includes witness 190.4; name, address, (3) 166 or Rule statements, does not include but corded par- telephone any potential and number of inter- during a conversation or taken "[n]otes knowledge ty any person with of relevant or view with a witness.” facts; (4) any photograph or electronic im- (e.g., age underlying photograph facts 192.5(b)(2). 22. Tex.R. Civ. P. scene) photograph accident or a of the party image any evidence; that a electronic sort 23. 179 S.W.3d at (5) any into intends to offer created under circumstances at 78. King, 24. See attorney-client exception to the within an hearsay.25 inability to obtain the substantial exception Any to false state- shown DA, testimony sought ments made the Blanks to the equivalent of the without example, hearsay not constitute hardship.” anything, would If when “undue rath- offered for their effect on the listener affecting Crudup’s comes to burdens er than for the truth of the matter assert- trial, prosecution the DA’s disclosure of its Crudup already ed.26 And has taken a aggravate. than to file did more to alleviate deposition questions on written of the DA’s

custodian of records order to establish D. The DA Has Not Consented to prosecution records file contains Testify by Producing File regularly activity of a conducted under Crudup alternatively argues that the 803(6). Crudup required Rule is not Rule of waived the under Texas produce testimony prosecutor, live from a 511(1) testify- Evidence and cannot resist might prove and he well be able to his case 511(1) pro- Rule ing. Again, disagree. we (1) means, through alternative including person vides that a waives a (2) evidence, testimony circumstantial “voluntarily if he dis- against disclosure Blanks, pretrial discovery from the any closes or consents to disclosure of (3) expert testimony prosecutorial significant part mat- decision-making sug- and whether the file ” Although ter.... the DA’s Office turned gests charged would not have prosecution objection, over its file without Crudup allegedly but for the false informa- work-product privilege which waived the balance, tion. Rule 192.5 strikes a sensible contents, record is as to the file’s recognizing lawyer’s that a are thoughts by doing indication that so devoid party his own and that a cannot invade the DA likewise enlisted its current and every cranny lawyer’s nook and of a case Crudup’s personnel former preparation, particularly when the “es- prosecution regarding malicious suit their already sence” of what the seeks has impressions case materials and related readily been revealed to him or is avail- here communications. The DA’s waiver is Indeed, insisting able.27 while he needs limited, limitless, agreeing pro- not malice, live Blank’s prosecution duce a file does not itself Crudup’s brief prosecu- concedes that the DA to so require produce personnel tion file contains all the evidence he needs: processes and related their mental Attorney “The notes of District McCabe may probed. further preparation case clearly Cynthia indicate the malice of Blank.” record, given therefore hold on this We in- protected nature of what

Understandably, Crudup desires live elicit, tends to that the DA’s selective dis- case, fortify but Rule closure of the while waiv- 192.5(b)(2) nearly permissive. so ing as to the documents the assuming testimony sought Even the is themselves, not waive the DA’s testi- does product, Crudup’s non-core work burden work-product privilege regarding monial showing pros- of causation in his malicious prosecutor’s processes; the mental nor did ecution suit is insufficient to constitute Crudup give to a “substantial need.” Nor has the DA’s file disclosure itself rise 801(e)(2) (admission 801(d). 25. See Tex.R. Evid. 26. See id. 803(6) (records party-opponent); regu- id. of 803(8)(A), (C) Hickman, larly activity); conducted id. 329 U.S. at 67 S.Ct. 27. See (public reports). records and hardship” Supreme “substantial need” or “undue The States Court de- United “Although to clared a generation ago, sufficient overcome the the frequently protects product. work-product non-core doctrine most is discovery a bar to asserted as civil litigation, proper in assuring its role the III. Conclusion justice system the functioning of prosecutor testimony Direct is not re- view, my is even more vital.”1 In mandat- and quired causation malice ing on personnel DA these Nor, prosecution malicious suits. on this impose facts an would unwarranted burden record, did the waive DA’s Office its work- prosecutorial on our finite State’s re- product privilege against testifying by pro- impede vigorous deploy- sources and the Given na- ducing file. ment such resources. and ture of what seeks his inabili- interpreting proce- the rules of When both and ty to show “substantial need” evidence, always dure and courts must be 192.5(b)(2), hardship” Rule “undue under Rule of mindful of the mandates of Civil force personnel he cannot DA to discuss 1 and of Evidence 102. Procedure Rule processes their mental or other case-relat- objec- paramount The former declares this preparation, ed communications and even fair, just, equitable tive: “to obtain a and subpoenaed testimony if the relates to doc- impartial adjudication great ... as already produced. uments expedition dispatch and and at the least conditionally grant petition We for expense litigants to the both writ of mandamus and direct court of may practicable.” state be The latter vacate appeals to writ of mandamus and its purpose: states “to overarching a similar quashing to reinstate trial court order unjustifiable ... elimination of ex- secure subpoenas issuing protective or- pense delay.” policy pro- two These only The writ der.28 will issue the court nouncements, Court, by this adopted both fails to appeals comply. rules and govern construction of the re- quire of fair efficient promotion Justice WILLETT delivered necessarily proceedings. And both rules concurring opinion. Texas analysis inform our whether law to force testi- permits private plaintiffs Justice JOHNSON delivered mony this. in cases like dissenting opinion, in which Chief Justice advances various DA’s Office’sbrief JEFFERSON and Justice MEDINA practical “turning view that reasons joined. litigants’ every into civil prosecutor’s office participate in Justice GREEN did not private investigators witnesses decision. policy.” public’s public dime is not sound allowing malicious argument One is WILLETT, concurring. Justice prosecution plaintiffs to commandeer effective, a Rule 511 waiv- Privileges, pre- personnel must be under dictable; actually plaintiffs cause privilege, theory or one er would uncertain cure. more than it would I subject varying applications, problems widely agree granting DA’s that than at all. with the Office barely better no Tex.R.App. 225, Mobles, U.S. 52.8(c). United States 28. See P. (1975). 45 L.Ed.2d 141 95 S.Ct. case, effectively would, exclud- prosecution cious testimony for live Crudup’s demand evidentiary chal- current and former anything, testimony exacerbate all ing prosecution for future malicious lenges County of the Bexar Criminal employees chiefly attorneys are plaintiffs. District Attorney’s participated office who District their criminal caseloads—“the focused on underlying criminal prosecuting in the duty prosecuting attorneys of all primary on court’s action was based case. The trial justice ... that is done”2—not to see [is] Quash Trial Sub- “Motion to unsworn being taxpayer-funded witnesses and Protective Order” filed poenas and For in If investigators private damages suits. parties the argued office and production of a case file effected selective agree I testimony or evidence. without subject-matter that for- sweeping waiver appeals that based on with the court obliged feited the testimonial court its dis- this record the trial abused depositions, hearings, to endure civil DAs subpoenas. in quashing cretion and trials while their caseloads County Attorney’s District The Bexar simply would for- languished, prosecutors and never filed its unsworn motion late Feb- cooperation altogether swear office anything. like ruary disclose Plaintiffs in a malicious suit would then be forced to “substantial Crudup. The filed David and Annette indi- hardship” need” and “undue for each A1 investigator related that DA motion prosecutor’s vidual document Cavazos, Sylvia Larry, assistant only practice laborious that would succeed former assistant Robert McCabe wasting expense time and for the bench subpoenas on behalf of been served with alike. and bar in ear- Crudups give testimony trial District Court ly March in the 166th properly scope Court limited that “The The motion stated from San Antonio. work-product resulting waiver and on objects, the DA’s disclosure to the documents on its behalf [DA’s] Office themselves, individuals, not to concern- live to their re- behalf of these un- ing thoughts communications testimony based on quired appearance and derlying each document’s contents. By mo- privilege.” product the work that tion the DA’s office claimed only

I separately write to make these by refer- individuals’ work or based on the unnecessary practical points, which while DA’s records should be found ence to the holding today, to our are nonetheless com- impressions, privileged; that the mental pelling. conclusions, opinions, legal theories JOHNSON, joined by Justice Chief attorney and the attor- strategies of an Justice JEFFERSON and Justice “prepared ney’s employees which were MEDINA, dissenting. were litigation or for trial” anticipation litiga- and that the DA’s entire privileged; subpoenas quashed

The trial court trial The motion re- privileged.1 tion file was shortly be- granted protective order quashed subpoenas quested to start in a mali- fore was scheduled whether the court 2. Tex.Code Crim. Proc. art. 2.01. dence as work subpoenas. The DA only quashed the trial arguably sought protection 1. The DA’s motion any issue as to the documents disclaims for the contents of its case file. The trial produced were and asserts granted without court’s order the motion subpoenas were only whether issue is specifying the material in the DA's whether quashed. properly going evi- case file was to be excluded from protective granted. response. Following hearing and a order The mo- a at which litiga- introduced, tion not mention that did the DA’s no evidence was court in produced August tion case file had been quashed subpoenas. in response subpoena to a duces te- The DA’s a argument signifi relies to given cum or that an assistant DA had a degree opinion cant on our in State ex rel. deposition questions on written that Walker, (Tex. Curry v. 873 S.W.2d 379 time to the file aas business record. 1994). in support The cites Walker (1) Nor did the motion claim that file position work-product privilege that the involuntarily mistakenly had been or dis- exempts litigation its entire case file from (2) closed; subpoenaed of the discovery. subpoena In Walker duces witnesses would not be relevant to the civil tecum was issued for: possess suit or that the witnesses did not records, books, Any papers, and all (3) suit; knowledge of facts relevant to the [sic], documents written memoranda there had been other instances of em- notes, photographs handwritten and vid- ployees attorneys having subpoe- or been eotapes, including but not limited to the give testimony prose- naed to in malicious file(s) your possession entire or under testifying cution cases and that in such indictments, control, your custody ar- or (4) burdensome; becoming suits was records, investigation, punishment rest

the witnesses’ at court in this attendance forensics, evidence, correspon- internal particular disrupt suit would the work of regarding dence and memos the arrest McCabe, longer the DA’s office.2 who no subsequent [NAME conviction of DA, urge worked for the did not that his September DEFENDANT] OF attendance at hardship court would work a or that he needed some accommodation as Id. at 380. to the time or date of attending his court. produced in Walker Before the file was asserted, in Crudups’ response part, quash subpoena the DA moved to (1) subpoenaed individuals were The trial court protective for a order. having

fact witnesses based on their had camera, direct- examined the DA’s files in conversations with real interest comprising ed that certain documents Cindy Blank and about such and directed work be withheld (2) privileged; conversations not even documents, remaining production file might some documents the DA’s documents, reports, court including police ordinarily product, conditionally grant- photographs, etc. We privi- all documents in the file would be to re- directing ed a writ the trial court (3) leged product; as work denying order part scind of its entire file had already produced been so, doing In we quash. DA’s motion to tecum, response subpoena duces stated: been on file the civil case for over effect, requires the District At

year, any privilege might other- this litigation entire torney produce wise exist the contents of the file was involving di copy except waived. A of the DA’s case file and for documents too This order is deposition questions the written and an- rect communications. Insur up attached to the broad. In National Union Fire proving swers were signed County 2. The Civil of the Bexar Courthouse motion was Assistant address apparently a short distance Division DA whose address was listed as 300 as 100 Dolorosa— gives Dolorosa in San Antonio. The record from the DA’soffice.

193 knowledge of a wit- Valdez, But the full ileged. 460 863 S.W.2d ance Co. (Tex.1993, stated orig. proceeding), we matters relevant to facts and ness as goes file attorney’s litigation that “[a]n hardly ever in a can claims made lawsuit privileged work area to the heart of the testimony of a witness known, and the be exemp by product the work guaranteed witness has until after the not fixed file, as organization The tion. wit- only It is while testifying. completed include decision as to what to well as the they have testifying or after are nesses it, attorney’s necessarily reveals the privi- admissibility the testified that concerning prose the thought processes testimony can be of their leged nature or defense of the case.” cution occasionally are determined. Witnesses reliance on Walker is mis- Id. The DA’s motion, instructed, timely proper upon placed.3 questions because not to answer certain First, in case the file was the before us matters testimony as to questions seek year DA filed produced over a before the inad- or are otherwise privileged which are quash. subpoena The duces the motion re- questions But if the are missible. County pursuant to which the Bexar tecum may some- phrased the witnesses then re produced DA’s office its file Lawyers may to answer. times be allowed quired production of all records relat about not to ask witnesses be instructed to, for, prosecu ing and the case file matters, as work certain such testimony of Crudup. tion of David The law- preclude that does not product, but response the assistant DA in to the sub from testi- asking, and witnesses yers from all records poena requested was that about, example, matters.4 For fying other produced. had been To the extent such as general procedures as to product the DA’s work was disclosed the DA’s office for intake procedures of documents, notes, preparatory trial memo- of those complaints, processing randa, organization of the case file or is made way by investigation other whether complaints, motion was long waived before the DA’s pro- of cases before criminal into the facts February filed in 2005. See Tex.R. Evm instituted, con- and whether ceedings are 511(1); Axelson, McIlhany, Inc. v. complaining made typically tacts are with (Tex.1990). are proceedings before criminal witnesses

Second, objects motion of the DA’s or after the during proceedings, begun, quash prod- witnesses. The work were not be are would proceedings completed testimony or dis- privilege precludes uct Crudup prosecu- as to the information; covery types it does testimony was encom- tion. Yet such testify- persons privileged make preclud- DA’s motion and is passed docu- ing. Witnesses are not the same as court’s order. ed the trial Documents have fixed contents ments. attorney gives no rule that There is analyzed to whether that can determine attorney’s employees priv- are or an the documents and their contents 199.5(d)-(g) discovery P. and 199.6 though 4. See Tex.R. Civ. Even Walker dealt with and the case before us deals depositions matters and assertion of conduct of oral testimony, neither contends testifying. privilege from applied determining privi- principles to be lege in the different and waiver are different involving parties rely settings. Both on cases discovery matters. 192.5(a). from being testify. agents. called to Texas Rule of P. See Tex.R. Civ. provides Evidence 501 that: privilege protecting does not extend to attorney attorney’s repre facts the or the Except provided by as otherwise Consti- may acquire. Owens-Corning sentatives tution, statute, rules, by by by these or Fiberglas Corp., at n. 818 S.W.2d 750 and prescribed pursuant other rules to statu- 2; Axelson, 798 S.W.2d at 554. tory authority, person privilege no has a to: 495, In Taylor, Hickman v. 329 U.S.

(1) witness; refuse to be a 385, (1947), by 91 L.Ed. S.Ct. cited (2) Court, Supreme matter; the United States Court any refuse to disclose question addressed the of whether either (3) produce any object refuse to or possession in written witness statements writing; or of, to, or oral witness statements made an (4) prevent being another from a wit- attorney in the at had to case bar disclosing any ness or or pro- matter produced in opposing parties response any object ducing writing. or pretrial discovery to a request. The wit- Privileges are addressed in Article ofV ness being statements discussed were not the Texas Rules of Evidence. The DA’s by made a witness to an non-client attor- V, provision office does not cite a of Article case, ney in situation another as is the rule, any or a statutory Constitutional or Crudups, nor the witness were state- provision which attorneys allows its in ments asserted be evidence another employees completely to be exempted proceeding. They were witness state- attending testifying from court or attorney part taken of trial ments facts or relevant matters within their preparation in the case which the dis- knowledge. The DA an exemption cites covery sought. addressing disclo- only as to one area: work statements, any sure of such oral witness product. product privilege the Hickman noted that: Court our rules procedure of civil allows the DA qualify as Such could not evi- employees protected to be from testifying dence; impeachment and to use it for or subject as to the matter of their work purposes corroborative would make the protection and that continues past attorney much less an officer of the ap termination of the criminal case and ordinary court and much more an wit- plies a situation such as that us. before .... of this production ness Denial of Owens-Corning Fiberglas Corp. v. Cald material, nature does not mean that (Tex.1991). well, 749, 818 S.W.2d 751-52 can non-privileged facts be hidden from However, general is not a petitioner in this case. exemption being a called as witness. 513, concurring In a Id. 67 S.Ct. 385. It is limited and as relevant here extends opinion, Justice Jackson noted that (1) prepared impres material or mental question of a of evidence depriving litigant developed anticipation litigation sions of was not involved: party party’s or for trial or for a or a representatives, recog- It has been including party’s long at seems clear and consultants, torneys, agents; discovery provide or should employees, nized (2) anticipation party anything or communications made in that is evidence access equally It clear that litigation or for between his case. seems discovery nullify party’s representatives among and the should not party’s representatives, including par of confidential communication between consultants, attorney princi- But those ty’s attorneys, employees, or and client. have work-product notions apply, here be- does pies give us no real assistance prevent dis- thought insufficient being sought is neither been cause what is evidentiary impeachment privileged covery nor is it a communi- evidence Taylor, client. attorney cation In Hickman between material. the Court 67 S.Ct. U.S. at J., 515-16, (Jackson, Id. at 67 S.Ct. 385 non- “... relevant stated: Where (citation omitted). As to state- concurring) in an at- facts remain hidden witnesses, signed or written ments production file and where torney’s evidence for the statements are not “Such prepara- to the facts is essential those they I think Nor should defendant.... case, proper- discovery may tion of one’s plain- the ordinarily could be evidence for had_” this lan- Pursuant ly be 519, tiff.” Id. at 67 S.Ct. 385. courts have ordered guage, the lower Nobles, 225, In v. U.S. United States even pretrial to be turned over evidence (1975), 2160, 45 L.Ed.2d 141 95 S.Ct. as a result of being it came into when work-prod- addressed the Supreme Court in adversary’s preparation efforts investigator’s report as to an privilege uct ... for trial a wit- investigator was called as when criminal trial. The Court held ness that with Accordingly, appear it would privilege below, that under the circumstances the exception to be discussed one S.Ct., 239-40, at 2160. was waived. Id. work-product notions of Hickman White, concurring opinion in a Justice impose no restrictions Taylor, supra, then-justice joined Rehnquist, ques- production of judge’s ordering the trial reaching tioned the Court’s the “waiver” trial; these evidentiary matter at determining protection issue before what way, only very a limited apply notions had report in the first instance. Jus- all, to obtain party’s if to a efforts at work-product opined tice White discovery pretrial pursuant evidence doctrine of Hickman could not be devices.... extended wholesale from its historic role 249-51, (emphasis Id. at 95 S.Ct. 2160 nonevidentiary as a limitation on the White then referenced original). Justice subject may material which be the “A a disclosable fact: example an of such discovery unprecedented to an pretrial witnesses of a defense team [who] member judge’s role as a limitation on the trial who statement of someone an out-of-court power compel production of evidentia- contradictory at trial in a later testifies

ry matter at trial.... at that moment a witness fashion becomes work-product doctrine of Hick- [T]he event....” Id. to a relevant and admissible supra, has been viewed Taylor, man v. Although Justice 95 S.Ct. 2160. exclusively a limitation on the almost as addressing whether notes of was White ability pretrial to obtain dis- concerning the wit- defense team member covery. It has not been viewed as a in the should be disclosed ness’s statement “limitation on the broad discretion as to prepared, a for which the notes were evidentiary questions at trial.” proce- which Texas and federal matter on (White, J., 242-43, 95 differ, Id. at S.Ct. of his might dure the substance concurring). work-product privi- As to the us. to the situation before example applies con- lege and trial evidence Justice White attorney’s and members of Attorneys tinued: cir- may in some team trial-preparation to matters fact witnesses

Indeed, discovery cumstances be pretrial in the even rule and events. work-product area

Furthermore, prod- to the extent a work required should have the DA’s office to exists, uct it can be waived. No- particular knowledge show what and infor bles, 422 U.S. at 95 S.Ct. 2160. Texas possessed by employees mation rules and If practice are accord. which the privilege applies, “person is waived if the It been waived. then could have limit or a predecessor person of the while hold- Crudups’ inquiries pending ed further privilege voluntarily er of the discloses or development of record. Because this any significant consents to disclosure of record is clear that the DA did not make part matter unless such any showing, employees such privileged.” disclosure is itself Tex.R. were not entitled law or rule to refuse 511(1); Axelson, see 798 S.W.2d at Evid. testify, to be witnesses and even some knowledge, their informa this, tion, disputes processes prop such as the burden of and mental was later proceeding producing erly upon objection. evidence must excluded Tex.R. Evid. 511(1). parties. (2); be on one of the The trial 501(1), court Nor was the DA’s effectively placed the burden on the Crud- office prevent employees entitled to its ups why attorneys to show the DA’s and being testifying witnesses and absent required testify should employees 501(4). be showing. such Tex.R. Evid. and what information or facts would be The Court concludes that conversations elicited from them. That is different from during between the DA’s office and Blank placement by of the burden Texas charge the course of the criminal investi prior Rule of Evidence 501 and our cases. gation product. But Blank was were work previously required We have party and non-party proceeding a to the criminal resisting testifying having employees or of the state. The employee was not properly to shoulder the burden of any that proof DA’s office did not offer asserting a privilege showing and that it Blank and DA more conversations between applied testimony to the in question. See employees place took than were memorial DeShazo, 920, Huie v. 922 S.W.2d 926 by Apart ized the DA’s file. from informa (Tex.1996) (orig. proceeding); Peeples v. by tion in the DA’s for disclosed notes Dist., Supreme Honorable Fourth Judicial privilege which the had been waived (Tex.1985) (orig. pro disclosure, of statements made the content Smith, ceeding); 688 S.W.2d Giffin employees, any, Blank if to the DA’s (Tex.1985) (orig. proceeding). See also P. might product. be work See Tex.R. Civ. (providing party Tex.R. Crv.P. 199.6 that a 192.3(h). of a But even the absence seeking having to avoid a witness give showing record were more conversa there deposition testimony privi on the basis of employees tions between Blank and the lege required provide evidence to than are disclosed in the DA’s file and support claim the form were, made assuming there statements or affidavits served before claim). employees arguably, to Blank hearing on the privilege The conclusively, privileged. not were not quashed subpoenas this case were not DA’s office did not show that conver discovery inquiries requesting the DA’s of Blank employees sations between its and specific fice to disclose information to file in litigation not memorialized in its protective for the motion order was (1) is, either They subpoenas product, directed. were trial cluded work prepared by material the DA’s office or its require which would the witnesses to testi for, of its fy generally. employees impressions At a minimum the trial court or mental of, anticipation proceed, given state employees developed den (2) trial; record, specif- made to the response or communications their motion trial be mo- preparation for the criminal reasons the DA’s ically set out some above, party’s representa party tween As noted tion should denied. 192.5(a). (1) P. If the tives. See Tex.R. Crv. those reasons included assertions Blank did employee’s DA’s statements to fact wit- were subpoenaed witnesses product, not include work the statements had they conversations nesses because If the privileged to start with. were Cindy Blank in interest with real prod to Blank disclosed work statements those conversations about uct, the to the dis privilege as material (2) prior produc- privileged; was not presumptively was waived and the closed any privilege file waived tion of DA’s have the burden DA would Crudups contents of the file. The why the effect show conversations did not support response: for their provided a waiver of the disclosed contains, file. The file copy of 511(1); matters. See Tex.R. Evid. Jordan matters, among report other from inves- Supreme Fourth Appeals v. Court of Larry documenting prog- IRS, FBI, was to product] disclosed the the in the representing DA was State Journal, of and the Wall Street the court proceeding against Crudup; David appeals properly privileges held that these to proceed- the Blank was neither waived.”); had been Nat’l Fire Ins. Union state; the nor an of the and ing employee (Tex. Hoffman, 746 Co. S.W.2d the prove any not reason that did 1988) And, App.-Dallas (orig. proceeding). employees’ of its conversations content extent to the that documents memorializ privi- non-party such a witness was ing produced the conversations had been product. employ- If the DA’s leged work and the contents privilege their in the product to Blank ees disclosed work waived, thereby the DA’s had employees file by disclosure the conversations or of about privilege no to refuse significant, and either disclosure 501; Hoffman, them. See Tex.R. Evid. more may waiver have occurred as to then (holding attorneys at 746 S.W.2d the product just DA’s than work had who authored letter to client which 511(1). disclosed. See amount Tex.R. Evid. disclosed could be examined about been that there Intuitively, speculate one could attorney-client letter of despite the claim product DA’s some of the work remained privilege). been privilege had not for which the Crudups’ raised response Because the But is not sufficient: speculation waived. of question the of disclosure the DA’s work required. proof is both disclosure of the product of for reconsideration In their motion file its conver- litigation employees’ order, Crudups at- the Blank, court’s question waiver sations with from quoted individual notes DA had the tached privilege was raised and the of a setting file out the contents the DA’s no proving burden of that waiver occurred. Jordan, Blank and the assis- at Even between 648-49. conversation See They handling prosecution. though Crudups did not have the bur- tant again urged that the contents of notes occurred. When the DA’s office ended its reflecting conversations were a proper pretrial presentation in the trial court subject of testimony from subpoenaed without providing proof that all of the tes- witnesses. The DA’s office still did timony subpoenaed witnesses could attempt to show authority for or give offer product would be work for which the evidence support employees its being waived, however, not been exempt giving from testimony as to con- that should have been the end of the mat- tents of the notes. The trial court denied ter as to the quash. motion to There was Crudups’ motion to reconsider. no support evidence to the trial court’s order effectively granted quashing subpoenas by the trial employees attorneys court on this record procedure turned the all, testifying and the motion should for protecting privileged up- have been denied. See Tex.R. Evid. side down. Instead of the DA having to The motion should have been denied also why show employees who had knowl- because the question of waiver of privi- edge of relevant matters should be pro- lege by disclosure was raised and there tected from testifying, Crudups’ attor- was not evidence that waiver had not oc- ney try had to preserve his right clients’ 511(1). curred. See Tex.R. Evid. call witnesses disclosing his work product in pleadings argument A quote from the United States Su- trial court setting out preme he Court which we have previously wanted to elicit subpoenaed from the applicable em- referenced is here: ployees. He has had to continue that “Proper presentation of a client’s case through course appellate court pro- two (the attorney) demands assemble ceedings. information, sift what he considers to be facts, the relevant from the irrelevant

Unlike the situation Walker where the prepare legal his plan theories and attorney district challenged an overly strategy without undue and needless in- subpoena order, broad and court here terference.” was the DA’s overly office that made an request broad seeking Valdez, an order from the Nat’l Union Fire Ins. Co. v. trial permitting (Tex.1993) court witnesses to refuse (quoting Hick give man, 385). to testimony. See TEX. R. EVID. 329 U.S. at 67 S.Ct. Much 501; Walker, 873 S.W.2d at If the evidence can presented be in different DA’s office sought only preclude ways. example, For of records events can testimony as to product, privi- be read or witnesses can be called to testi leged subject nature of the might fy matter by as to the matters covered the rec much, required ords; not have any, proof. witnesses can be called live or The trial court could have entered a pro- reading depositions; or several witnesses precluding tective order Crudups’ at- can present (hopeful be called to evidence torney inquiring from ly into certain matters non-repetitiously) which pre could be pending further orders of the court. Then sented one impact witness when the of as the trial proceeded the calling court would multiple greater witnesses will be have had the benefit of at least rec- lawyer’s some the trial judgment using than ord on which to base its decision as only to both one story. witness to tell the Deci existence of as to subject sions presented about how evidence will be matter and whether waiver of the privilege trial so maximize as to the client’s specific testimony sought had prevailing among chances of are the most lawyer make. important a trial must Texas The STATE of unduly trial court’s order

this case the tri Crudups’ attorney’s interfered certain and forecloses preparation al as case can choices to how client’s DOTSON, Appellant. Larry Don Among problems at trial. other

presented (1) No. PD-0614-06. creates, im court’s it the trial order ability to Crudups’ attorney’s pairs Appeals Texas. of Criminal Court the Crud- present best to determine how jury he cannot ups’ case to the because 23, 2007. May subpoenaed witnesses having count office) (or from the DA’s other witness (2) testify; forecloses

available to testimo

Crudups’ attorney using from live dis

ny present explain matters file such the dates

closed Blank, the of con

contact with substance and both the existence with her

versations reports offi police

and substance of from (3) keeps investigators;

cers

Crudups’ attorney asking DA em in the

ployees interpret they knowledge of rele-

certain witnesses with having

vant to disclose matters pretrial ap-

strategy justify it simply proceedings because

pellate office a motion such as the one filed

it filed. by the deny sought

I would the relief Biggers,

DA’s office. See State (Tex.1962). notes tigator Dist., 644, 648-49 701 S.W.2d Judicial ress of the conversations (Tex.1985) Ax (orig. proceeding); see also handling Blank between and assistant DAs (“Since elson, 798 S.W.2d at 553-54 there case. At least one of the conversations investigation [which was evidence that the proceeding the criminal place took after being claimed as noted, the previously was dismissed. As

Notes

notes made all case or even whether records of complaining conversations with witnesses were made. Crudups’ counsel has maintained planned that he the com- plaint by the Blanks the DA was made filed false and that the DA would have false proceedings the criminal absent the can; maybe he complaint. Maybe he But can’t. counsel was entitled to formu- pursue strategy late and without hav- ing by preemptive exclusion limited

Case Details

Case Name: In Re Bexar County Criminal District Attorney's Office

Court Name: Texas Supreme Court

Date Published: May 4, 2007

Citation: 224 S.W.3d 182

Docket Number: 05-0613

Court Abbreviation: Tex.