*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, 720 S.W.2d 801 (Tex.1986). In companies different railroad with the death Stringer Appeals the Eleventh Court of occurred, of a head brakeman had was not post- found that information in a obtained post-accident sufficient to clothe all investi- investigation privileged accident gations, frequently uncover fresh ev- 166b(3)(d) Procedure Rules Civil through idence obtainable other and the Eleventh Court reversed the trial sources, privilege with the of non-disclo- against court’s sanctions orders very strong ruling. sure. This is a It is Atchison, Topeka Railway and Santa Fe clear, then, glaringly Supreme Supreme Company. per in a Court Court felt that even in the unusual fact opinion squarely post- curiam held that the freight situation wherein two different accident and information was operated by trains owned two different discoverable because it was not obtained at collision, companies railroad had a result- Railway Company Fe a time when Santa ing employee, in the death of a Fe Sante good cause to that a had believe lawsuit Company Railway that the Sante Fe did not fact, filed. In would be good that a have cause to believe suit “will held that the Eleventh Court Heard, Turbodyne Corp. be filed.” See Appeals actually had abused its discre Turbodyne S.W.2d granting tion in the mandamus relief. per opinion —another curiam —the The salient and crucial were that facts wrote: underlying lawsuit arose as a result *5 in Robinson v. Harkins & “Recently, Atchison, Tope a collision between an (Tex.1986), Company, 711 S.W.2d 619 Railway Company Fe ka Santa investigative privilege in held that the freight train and a Missouri-Pacific 166b(3)(d) governed by is still the Rule Stringer, a freight train in which R.D. Humphreys, rule announced Allen v. in train, brakeman the Fe head Santa for (Tex.1977), only doc- 559 S.W.2d 798 Vikki, Stringer’s wife, was killed. Mr. prepared in with the uments connection against suit Sante Fe. quote filed the lawsuit in prosecution or defense of Stringer: sought protect- discovery is will be Company, “In Robinson v. Harkins & investigator’s that an ed. We decided 1986), ([Tex.] 711 619 we held the S.W.2d report prepared in connection with a investigation privilege in embodied TEX. compensation claim was dis- workers’ 166b(3)(d) governed by is still R.CIV.P. injury ac- personal in a later coverable Allen v. Hum in the rule established applies Robinson reasoning in tion. The phreys, 559 (Tex.1977). Only 798 S.W.2d prepared by to this case. Documents party after information obtained a with settlement Travelers connection good there is cause to a suit will believe would not be of its claim with its insured be filed or after the institution of a law discovery in a later subro- protected from privileged.” suit is gation suit.” Stringer, supra, per opin- In the curiam is on held that the burden The Court v. Harkins ion referred to Robinson prove that party resisting to (Tex.1986), reaf- Company, 711 S.W.2d 619 evidence, investigation or information firming had held the investi- that the Court developed or acquired, obtained was either Rules gation privilege embodied in Texas See, litigation. anticipation the actual 166b(3)(d) gov- was still Procedure Civil O’Neill, (Tex. Lindsey v. S.W.2d 400 Allen v. by the rule established erned 1985). Humphreys, 559 S.W.2d 798 Corp. Phelps Dodge Refining v. high only information Court held Marsh, (Tex.App. Paso 733 S.W.2d 359 good there is party obtained a after —El writ), good the court held that no that a suit mil be cause to believe filed filed a lawsuit will be cause to believe that filing actual lawsuit has a of a some necessary prerequisite has as a reasoned, privileged status. The Court compensation s insurance litiga- of future certain worker “outward manifestation” party claiming attorney a also a tion to have cause advised that carrier. likely against of action. Such outward manifestations the Relator lawsuit encompass injured person could com- hence, desirable to interview it would be investigation mencing an actual oc- members of the crew that other work hiring attorney currence or to do so as working had been Castellano actually making a claim or well as formal breaking the time of the event chain damages. The El Paso demand injury death. This resulting with the wrote further: were inter- was done. Certain individuals belief, past “A good expe- faith based on specific questions which were viewed rience, may that a be filed does suit suggested by actually were ‘good deny cause’ so to dis- establish as written answered. Also obtained were yet covery where suit has not been so, all of materials statements. Even added) (emphasis discoverable, El Paso Court held. filed.” held, in The El Paso Court further sub- course, Of whether or there stance, filing that without the actual of a realistically a good believe that cause good to antic- and without cause lawsuit depends necessarily filed lawsuit will be involved, ipate particular lawsuit then manifested, overt facts upon the relevant privilege exemptions out in Rule set should be de particular situation and Procedure, 166b(3)(d), Rule of Civil using objective such as cided standards ques- did not extend to the think manifestations.” We “outward attorney’s prediction tion. an able Even concept test or “outward manifestations” personal injury suit for likelihood Using veritable, authentic merit. damages “good was not an efficient cause” rule will lead “outward manifestations” believing that an actual suit would be uniform, objective standard —a a more Hence, employer’s post-accident filed. Steel trustworthy standard. See Cherokee investigation that was conducted Fabricators, 733 S.W.2d Khoury, Inc. filing the actual date of the of the lawsuit 1987), original (Tex.App. Tyler — interesting to note was discoverable. It *6 proceeding. Phelps Dodge, brought that in the suit was surviving widow, individually and as the language used the some of the From children, gross next friend of her based on investiga- byB marked Exhibit an affidavit wrongful negligence the death the absolutely not clear appeal, tor it is in this father, Harvey husband Castellano. Ling was, employee to Mr. David as whose injured Mr. a chain Castellano was when sort of a not as to and it is clear what Phelps Dodge’s refinery. After broke at anticipated. lawsuit, any, have been if could doctor, consulting a local Mr. Castellano be against would a lawsuit Query: whom duties, to his but later returned was then theory it Query: what would filed? hospital. a returned to admitted to He negligence, gross brought? Query: be injury The occurred work a second time. employer, a against was the whomever 2, During evening of on July the action, compensation worker’s third-party a August 7, 1986, began experience he to anticipa- queries These render the claim? emergen- He driven to headaches. and un- litigation hazardous tion of actual hospital lapsed he cy of the where room certain. pronounced into thereafter a coma Chapman Mr. attorney advised The support Life to dead.” facilities be “brain go to he, attorney, could August The 9th. Rela- were terminated on according attorney’s to the plant site tor, Phelps Dodge, learned of Mr. Castella- affidavit, Chapman simply should 11th, the Rela- August on no’s death investigation perform proceed with the sought advice from personnel director tor’s attorney keep in and then same attorney. per- advised sanguinely hold that Again, we office formed. contact the OSHA sonnel director to exemption is product attorney’s work appropriate file documents with and to ' Indeed, Kilgarlin, writing in Gar simply applicable Chapman here. Mr. Justice :7 cia, held, supra page apparently at 34 and Bob McCormick started working on the and the tak- discovery is an “Shared effective ing persons statements various to' insure full and fair disclosure. means 23, May p.m. at or after 5:30 on sometime subject Parties to a number of suits con 1987, explosion of the fire and at date cerning subject the same matter are plant. Mont Belvieu Under responses forced to be consistent their record, simply this we cannot rule that the knowledge opponents by the their discretion; therefore, trial abused his See Bueh compare responses. can those stay January Whalen, decide that our order of 51, we ler v. 15 Ill.Dec. Ill.2d [70 15, 1988, dissolved; it is so or- should be [1977]; 852,] 374 at 467 S. N.E.2d [460] deny application for the Baldwin, Hare, McGowan, dered. We F. F. mandamus, affirming the order be- Liability writ of Preparation a Product óf low, opinion. modified as (1981).” Case Sec. 5.2.5 Court, think, system Our Texas discovery produces a Shared discovery proceedings as a tool and a sees is more effi- judicial administration that effi necessary expeditious, system mandate of such a cient and the results resolving litigation by permitting cient higher quality. of a litigants full to obtain a rather knowl 2, “1)”, page Paragraph on edge virtually facts all the relevant 23, 1987, Order is judge’s December trial Solito, v. West the trial on merits. reads in paragraph That troublesome. TEX.R.CIV.P. 563 S.W.2d 240 part: per Rules”, “Objective of entitled procedures safety and what “1) ... quote from Texa weight suasive here. prevent be med in the could future Sanderson, Refining Marketing co occurrences(Emphásis add- similar (Tex.App. S.W.2d 493 —Beaumont ed) writ), page no 495: safety procedures that We conclude rules of proper objective “The civil prevent future to could used fair, eq- procedure just, obtain not lead to ad- similar occurrences adjudication of impartial uitable and evidence, allegations of based on missible prin- rights litigants under established precautionary mea- negligence. Repairs, end ciples of law. To the substantive measures, an acci- safety sures objective may that this be attained admissible, dent, ordinarily, on the are not expedition dispatch and at great as party. negligence of the other issue litigants expense both to the the least and well-estab- on reason This rule based practicable, may be and to the state as *7 RAY, TEXAS policy. 1A R. public lished given a liberal con- rules shall be AND CRIMI- CIVIL OF EVIDENCE LAW. theirs) (Emphasis struction.” ed.). (Texas 3rd Practice 1151 NAL Sec. discovery in effect in 1987 The rules of Jeremy Wicker Supplement by The 1986 designed a fair contest to effectuate concerning rule the same basic provides relevant, facts dis- material with all remedial measures. fullest, degree. The practical closed to the of TEX.R. However, last sentence acknowledged 407(a) reads: CIV.EVID. goal pretrial that a desirable preclude shall “Nothing in this rule material the truth and the was to discover liability products admissibility in cases legal proceedings facts order liability.” based on strict facts. A trial on by all of the be decided rights rules recognize a We longer considered be merits is no are broader discovery practice game similar to “blindman’s or contest admissibility concerning the than the rules Peeples, 734 S.W.2d Garcia v. buff”. However, interesting and it is Touchy, 673 S.W.2d of evidence. Jampole v. (Tex.1987); that, note, think, in the important we Supple- solely function of a court Rule 407 in the 1986 trial discussion RAY, 1A R. trial ment TEXAS should left to the without Wicker LAW EVIDENCE CIVIL AND CRIMI- any “suggestions” OF this court. NAL, page enlightening find this expressed, I For reasons herein con- paragraph. in part. and dissent part cur in involving “In a civil case submitted liability, negligence

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.