*2 JUNELL, privileged Before SEARS and uments were *3 CANNON, JJ. The documents at issue are those materials investigation re-
comprising the accident produc- port. request to a OPINION Monsanto claimed that the was CANNON, Justice. TEX.R. exempt discovery under 166b(3)(d), “party the communica- CIV.P. appeal take-nothing This is an from a After to tions rule.” Smith filed a motion judgment personal in a case. On injury (and compel discovery after the trial had 14, 1982, David Lee Smith was commenced), the trial held eviden- court an premises a car while on of Mon- hit the hearing concerning privi- of tiary the claim Company’s Bayou Plant. santo Chocolate lege. Following testimony in cam- and an car, the driver J.W. Smith sued inspection, the ruled that era court Inc., Company, Crescent Electric compiled of liti- anticipation in was employer, Thornton’s and Monsanto Com- mo- gation and therefore denied Smith’s (J.W. pany. prior Thornton died to tion. the Estate of J.W. added Thornton was as The case a party.) a was tried before The to limit dis seeks percent neg- found jury, sixty which Smith asserting privilege has the covery by a ligent. The trial court a take- thus entered proof. Enterprises, Inc. burden of Weisel nothing judgment in defen- favor of the (Tex.1986). At 718 S.W.2d Curry, v. 58 ap- affirm dants. We on January Rule the time of trial peal. 166b(3)(d) provided follows: accident, appellant Exemptions. following the time of the
At
The
matters
Smith was an
Interna-
Voss
are not discoverable:
tional, a subcontractor at
the Monsanto
exception
d. with the
of discoverable
plant. Upon
plant
his arrival at the
on the
for ex-
prepared
or
communications
14th,
crossing
his
parked
car and was
passing be-
perts, any communication
(in crosswalk)
parking
the street
a
from his
agents
representatives
or
or the
tween
designated
approxi-
lot to his
work area at
or
any party
the action
employees to
Meanwhile, appellee
mately 6:50 a.m.
any party
communications between
passenger
and his
Cot-
Thornton
Gerald
representatives
their em-
agents,
or
his
driving
to
tingham were
down the street
to the
subsequent
ployees, where made
raining
lot.
It
visi-
parking
their
upon
or transaction
which
occurrence
By
bility
poor.
Thornton saw
time
based, and
in connection
suit is
made
crosswalk,
unable to
Smith
he was
investigation or de-
prosecution,
Smith, breaking
stop, and the car struck
investigation of
of the claim or the
fense
legs.
both
out of
or
the occurrence
transaction
arisen;
claim
...
which
jury
At trial the
found
both
166b(3)(d)
doc-
keep
protects only those
negligent
failing
to
a Rule
Thornton
prepared
Mon-
connection with
jury
also found
uments
proper lookout.
or
the lawsuit
failing
provide
prosecution
a
defense of
negligent
to
however,
negli-
discovery
sought.
is
Robinson
light;
such
which
flashing yellow
(Tex.
Co.,
621
proxi-
gence
Harkins &
was determined not
1986);
559 S.W.2d
jury
Humphreys,
then
Allen v.
of the accident. The
mate cause
Furthermore,
in-
Smith,
sixty
negligence to
assigned
percent
by party after there
five
obtained
percent
to Thornton and
formation
thirty-five
or
filed
suit will be
good cause
believe a
percent Monsanto.
privi-
after the institution of a lawsuit is
Wilbeck
testified
other indications that
leged. Stringer v.
Ap-
Eleventh Court
Monsanto thought there
peals,
(Tex.1986),
believe a
cit-
suit would be filed. Usually
ing
Robinson
Allen.
statements are
verbally
and inter-
preted by
committee and
Smith contends that Monsanto failed to
typed.
are then
reports
from the
applicability
establish the
of the Rule
emergency
attending
team members
166b(3)(d)privilege
at
the time of
very
were handwritten and
lengthy.
were
the investigation
there was not
cause
spaces
paper
All the blank
on the
were
support
believe a suit would
filed. In
crossed out so that
could be added.
were
documents
stated
the reports
pre-
privileged,
presented
the testimo-
pared in this
so manner
could be ad-
ny
Wilbeck, Jr.,
John
Gilbert
in potential litigation.
missible
Following
superintendent
health
the Chocolate
the first
on
scene
Bayou plant. Wilbeck testified
*4
gate guard,
was
and his statement was
not
practice
Monsanto’s
to investigate ev-
gain
taken to
facts that
be
could
used in
ery
plant
incident that
on
occurs Monsanto
litigation. Other statements in the investi-
grounds
only
but
those that occur inside
gation report are those of contractor em-
plant
(It
appears
fence line.
from a
ployees at
the scene. Wilbeck testified
diagram in the record that the fence does
they were obtained from the contractors
property
surround the entire
but
rarely
because Monsanto
interviews such
plant.)
particular
This
area of
acci- employees directly.
if
When asked
happened
dent
outside the fence line. Wil-
statements were obtained before or after
beck stated further
while
Monsanto
filed,
suit was
explained
Wilbeck
that nor-
investigates every
involving
accident
a mally they
except
are not “accessed”
employee,
company
Monsanto
does
process
gathering
litiga-
information for
customarily investigate
involving
accidents
actually
However,
tion
been
filed.
Also,
employees.
contractor
is a
there
particular
when
did not know
these
policy concerning investigations
written
acquired.
statements were
accidents,
employee
Monsanto
but there is
personally
Wilbeck was not
involved in
no
policy regarding investigations
such
investigating the accident as he did not
Although
contractor
accidents.
superintendent
health
become
he could not remember the names of those
until
Neither had he dis-
November 1984.
involved, Wilbeck maintained that he knew
conducting
cussed the reason
the inves-
specific
instances
em-
where contractor
tigation
Usrey,
predecessor
with Red
ployees
injured
premises
on
Monsanto
charge
investiga-
and the
investigate.
Monsanto did not
However,
placement
by virtue of
tion.
explained
Wilbeck
that Monsanto acted
drawer,
Usrey’s
file
Wilbeck
draw
contrary
policy in
instance
this
put
report
the conclusion that
a
emergen-
“due to the unusual nature of the
position.”
“potential file claim
He ex-
emergen-
cy response and the
fact
litigation”
plained
“potential
that the words
cy medical team and
from Mon-
ambulance
particular
appear on the
in which
file
this
used,
we felt like there was
placed. Finally,
Wilbeck
potential litigation
un-
in this case.” The
part
investigations
three accident
usual circumstance was that the ambulance
and,
prior
assuming
his current
transported a
non-employee
other than
on
if
experience,
based
stated that
this
primary point of care. When the ambu-
place today,
highly likely
took
accident
designated facility,
lance arrived at
would result. He further testified
claim
orthopedic surgeon
there
nowas
available.
that to his
there was
notice
discussion,
agreed
After some
the team
letter, telephone
or other communica-
call
Freeport
suggesting
might
take
on to
where he was
file suit
that Smith
filing.
against
prior
Monsanto
to the actual
treated.
again,
ably
probably
to cause and
did
Once
if a lawsuit has not
calculated
filed, only
improper judg
information
of an
been
obtained
cause rendition
good
81(b)(1);
by a
after there is
TEX.R.APP.P.
ment....”
South
privileged.
Inns,
Co.,
a suit will
filed is
believe
Ltd. v.
Electric
west
General
necessarily
cause exists
de
(Tex.App.
Whether
744 S.W.2d
— Houston
particular
pends
denied).
on the facts of
case
Under this
writ
[14th Dist.]
using objective
standard,
and must be decided
stan
appellate
the trial court’s action
Fabricators,
dards. Cherokee Steel
Inc. v. must
affirmed.
Khoury,
(Tex.App.—
on
testimo-
Apparently based Wilbeck’s
1987),
vacated,
Tyler
mand.
Matthews v. ny, appellant
has determined that
Appeals,
where the blank were crossed driver, Cottingham, the nothing Although that be added. at of whom testified passenger, his both ultimately emergency response the was not (Thornton There is by deposition). lawsuit, subject of the actions the these gate from the Monsanto also a statement lend credence to Monsanto’s claim that it report prepared by guard, as as a brief well a suit believe would depart- in Monsanto an the Finally, filed. this not a situation report also contains the state- ment. The which Monsanto had sole access to witness driver and one of ments of the ambulance es and to the accident site. Tucker v. Cf. attendants, describing only the treat- the 247, (Tex.App.— Gayle, 709 S.W.2d 250 the transportation his ment of Smith and 1986, writ). Al Houston no Dist.] [14th remaining hospitals. The statements two though happened property, on Monsanto (Panko- Pankonun are those of Richard on an access road the accident occurred Voss, John nien?), foreman at Smith’s guarded gate, plaintiff outside the and the Group Pace of Spears of and Brian Voss photographs to take and measure was able Constructors, (along All three men Inc. ments there. listed Cottingham) were Thornton and great has latitude to The trial court in- plaintiff’s by Monsanto in discovery, its action can deny order or having terrogatories persons clear set aside unless there not be case, and Pankonun relevant to the of facts showing of discretion. Tucker v. of abuse testified at trial. if at 249. Even we were Gayle, 709 S.W.2d however, ex- we have importantly, More the trial court abused its discre to find that they conclude amined the documents case, have to in this would then tion we evidence that was no admissible contain the record as a whole determine from testimony jury at trial. investiga withholding of the whether the Although length. the issues addressed to such a denial report “amounted Cottingham Smith, actu- Thornton and only appellant as was reason- rights ally accident, “witnessed” others Following testimony privilege were nearby hearing, described the scene and brought back to testi- lighting, visibility fy weather and regarding conditions. several photographs of the information is either photographs cu- accident scene. These were 1986, mulative of evidence or immaterial taken on years four the issues at find and we after the between 6:52 a.m. and any of the documents that could 7:20 verify conceiva- a.m. Wilbeck was asked bly any have caused the present rendition other photographs that the judgment. reasonably accurately depicted the con- existing ditions at the time were tak- also contends in of error Upon en. objection by Smith that this was one that Monsanto failed to establish the testimony chief, toas Monsanto’s case in 166b(3)(d) applicability privilege the Rule argued Monsanto testimony comprising because the communications necessary to rebut photographs exclusively were not between plaintiff’s expert p.m. between 8:00 agents, employees representatives or p.m. argued 9:00 Monsanto further discussion, Based Monsanto. on the above Smith had days prior been informed several we note five of the statements might to trial rebuttal witness investigation report made non- expert’s photographs called if the were ad- (Thornton, employees Cotting- mitted. ham, Pankonun, Pace). Spears and While 215(5) Rule of the Texas Rules of Civil merit, argument stage Smith’s at this gives Procedure the trial court discretion to proceedings again once we must testimony admit cause when a according review the trial court’s action to respond supple has failed to or to imposed by the standard TEX.R.APP.P. ment See Gannett Outdoor Co. 81(b)(1). Inns, Ltd. v. Southwest General Kubeczka, Texas v. Co., 744 Electric S.W.2d at We (Tex.App. no [14th Dist.] — Houston protection reverse if writ); Temple U.S.A., see also v. Zimmer of these five statements amounted to such Inc., (Tex.App . —Hous rights a denial of Smith’s as was reason writ). ton Dist.] [14th *6 ably to probably calculated cause and did purpose claims that in Monsanto’s introduc improper judgment. cause of an rendition ing testimony Wilbeck’s was to establish We conclude that it did not. visibility conditions the crosswalk at Cottingham Pankonun all testified at day the time of the accident occurred. investiga and their statements in way, Stated another “Monsanto’s intention tion report testimony. add to their to impart jury to Mr. Wilbeck’s Spears in Monsanto’s Pace named purported knowledge lighting and visi interrogatories plaintiff’s to bility vicinity in the of the cross conditions deposed. been Their have state approximately on a mid- walk at 7:00 a.m. ments are cumulative evidence find, however, morning.” We jury. We therefore overrule testimony simply to authen that the served point of error one. placed evidence photographs ticate such, it photographs. rebut other As two, argues point error testimony, rebuttal and we find abuse of permitting that the court erred in Wil- admission. therefore discretion We testify as a for Mon beck to fact witness overrule of error two. previously was not listed in as he court is af- of the trial interrog plaintiff’s Monsanto’s answers to firmed. atories as a with of facts case. maintains that relevant to the Justice, SEARS, concurring. testimony surprise and Wilbeck’s came as a Rehearing, I concur prejudice caused to his case he was On Motion for original opinion. results in the opportunity prepare denied the for it. disagree majority opinion I with finding trial court did not
their denying discovery.
commit error in testimony of Mr.
majority opinion cites the which shows that he was not even and had not
involved anyone
discussed it was involved preparing sought documents Therefore, any opinion
discovered. offered investiga him to the reasons for the purely
tion are conclusions and as such do proof necessary satisfy
not the burden of reports protect discovery. from Fur
ther, “highly the mere conclusion that it is
likely a claim would result” protect investigative reports
sufficient to discovery.
from It is clear that the mere
belief that a lawsuit be filed protect investigative reports
sufficient
Stringer
See
v. Eleventh
(Tex.
Appeals,
1986), Heard, Turbodyne Corp.
S.W.2d 802
However, examining the record and sought discovered, I
the documents to be denying discovery
would find the error in
to be harmless for the reasons set forth in original Therefore, opinion. I concur in . only.
the results ADAMS, Appellant,
Michael Kent *7 Texas, Appellee.
The STATE
No. 6-88-015-CR. Texas, Appeals
Court
Texarkana.
Dec.