Summary
noting Rule 503 not Rule 612, describes circumstances in which document protected by attorney-client privilege may be subject to disclosure
Summary of this case from In re McIntyreOpinion
No. 09-06-470 CV
Submitted October 24, 2006.
Opinion Delivered October 25, 2006.
Original Proceeding.
Writ Conditionally Granted.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Relator, Chevron Phillips Chemical Company LP, seeks a writ of mandamus requiring the trial court to vacate an order that compelled production of a memorandum prepared by one of Chevron's attorneys. A failed real estate transaction resulted in the underlying action for breach of contract and fraud. Real party in interest, Kingwood CrossRoads, L.P., sought production of a confidential research memorandum prepared by an associate of the law firm representing Chevron in the transaction. Because we conclude that Chevron has not waived the attorney-client privilege and that the document is not subject to production on this record, we conditionally grant mandamus relief.
Kingwood contends the trial court has discretion to order production of a writing used to refresh memory for the purpose of testifying. Rule 612 provides that writings used to refresh a witness's memory may be discoverable "[i]f a witness uses a writing to refresh memory for the purpose of testifying, . . . before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice. . . ." When discoverable, Rule 612 entitles an adverse party "to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness." Tex. R. Evid. 612.
While Rule 612 generally deals with writings used to refresh recollection, in this instance the writing in question is also privileged. See Tex. R. Evid. 503(b)(1)(E) ("A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . among lawyers and their representatives representing the same client."). Rule 503, not Rule 612, describes the circumstances under which a document subject to the attorney-client privilege is subject to disclosure. See Tex. R. Evid. 503, 612. Kingwood does not contest the privileged nature of the memorandum, but contends Chevron waived its attorney-client privilege. According to Kingwood, the memorandum refers to a certain document and establishes that Chevron possessed that document on an earlier date than admitted by Chevron through its witnesses and in its discovery responses. The witness referred to by Kingwood testified that he did not recall whether they had a copy of the document when he helped draft a second memorandum. Chevron amended the discovery response referred to by Kingwood, and admitted its counsel possessed the document in question ten days before the date of the first research memorandum. Therefore, the memorandum is not inconsistent with Chevron's discovery responses.
Kingwood also contends that Chevron waived its attorney-client privilege through voluntary disclosure of a significant part of the memorandum in a second memorandum that counsel distributed to a third party. See Tex. R. Evid. 511. Kingwood argues that because the disclosed memorandum was based upon the privileged memorandum, Chevron waived its privilege. Kingwood fails to distinguish between using core attorney work product to prepare a document for dissemination to third parties and disclosing the privileged document itself. Chevron did not voluntarily disclose any part of the memorandum at issue in this case.
Kingwood claims that Chevron waived its attorney-client privilege through offensive use of at least part of the memorandum. Offensive-use waiver of attorney-client privilege requires that: (1) the party asserting the privilege is seeking affirmative relief; (2) the privileged information sought must be outcome determinative of the cause of action asserted; and (3) disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (orig. proceeding). According to Kingwood, the memorandum's importance arises not from the legal position taken by Chevron but from the chronology the memorandum reveals. Kingwood argues Chevron should not be allowed to claim that Chevron's change in position was based on new information if the memorandum will show that Chevron already had the document in its possession. Chevron admitted in written discovery responses that it had possession of the document on the date of the memorandum. Thus, production of the memorandum is not the only means through which Kingwood may obtain the evidence it claims is outcome determinative of Chevron's claims.
In this case, the deposed witness did not use the memorandum in a manner that waived Chevron's attorney-client privilege. Chevron did not voluntarily disclose the memorandum to third parties. Finally, disclosure of the memorandum is not the only means by which Kingwood can establish that Chevron possessed relevant documents at a particular time. Here, neither the Rules of Evidence nor the offensive-use doctrine allow discovery of the research memorandum by the opposing party. Under these circumstances, the trial court abused its discretion in ordering production of a privileged document.
We conditionally grant mandamus relief and will issue the writ only if the trial court does not vacate its order of October 16, 2006. All pending motions are denied as moot.