Tolbert v. Taylor

Full title: CARL TOLBERT, NIZZERA KIMBALL, AND VIVIAN ROBBINS, Appellants v. TERISA…

Court: State of Texas in the Fourteenth Court of Appeals

Date published: Apr 7, 2020

629 S.W.3d 318 (Tex. App. 2020)

Opinion

NO. 14-18-00001-CV

04-07-2020

Carl TOLBERT, Nizzera Kimball, and Vivian Robbins, Appellants v. Terisa TAYLOR and Pathway Forensics, LLC, Appellees

Gregory B. Enos, Webster, for Appellants. Vivian Robbins, pro se. James Louis Doyle II, Marlene C. Williams, Houston, for Appellees.

Margaret "Meg" Poissant, Justice

Gregory B. Enos, Webster, for Appellants.

Vivian Robbins, pro se.

James Louis Doyle II, Marlene C. Williams, Houston, for Appellees.

Panel consists of Chief Justice Frost and Justices Bourliot and Poissant.

OPINION

Margaret "Meg" Poissant, Justice

The mother alleges that her electronic communications were illegally intercepted, used, and disclosed. The mother and other plaintiffs asserted various claims against the attorney for the mother's ex-husband in a child-custody modification suit and against a forensics company the ex-husband and his attorney hired as an expert in that suit. On appeal, the mother and two others challenge the trial court's orders granting two summary judgment motions in favor of two defendants, and one of the trial court's discovery orders. We reverse in part, affirm in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Mark Broome filed a child-custody modification proceeding against his ex-wife, appellant/plaintiff Vivian Robbins, regarding custody of their daughter ("Modification Proceeding"). Appellee/defendant Terisa Taylor is an attorney who represented Broome in that proceeding. Robbins and appellants/plaintiffs Carl Tolbert and Nizzera Kimball (collectively the "Robbins Parties") allege that in the summer of 2013 their confidential and personal communications (i.e. , texts and emails) began appearing on an iPad owned by Broome's sister-in-law (the "iPad"), without the Robbins Parties' knowledge or consent. After Broome obtained the iPad, Broome shared Robbins's text messages and emails with Taylor by providing her with the iPad. The Robbins Parties allege that Robbins's text messages and emails are illegally intercepted electronic communications (collectively the "Messages"). Tolbert and Kimball are two of the people with whom Robbins communicated in the Messages. The Messages included a nude photograph of Robbins that she had sent to her boyfriend in a text message.

Broome and/or Taylor allegedly provided the iPad to Pathway Forensics, LLC, a computer forensics company hired by Broome and/or Taylor. Pathway allegedly used and disclosed the Messages and emails to Broome and Taylor. Taylor allegedly used and disclosed the contents of the Messages to the trial court in the Modification Proceeding, in conducting discovery, and in Broome's pleadings in that proceeding.

The Robbins Parties and others filed suit against Taylor, Pathway, and others. The Robbins Parties asserted against Taylor and Pathway (1) civil claims under article 18.20, section 16 of the Code of Criminal Procedure¹ based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications in violation of Chapter 16 of the Penal Code² (the "Texas Wiretap Claims") and (2) civil claims under title 18, sections 2511(a) and 2520 of the United States Code³ based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications⁴ (the "Federal Wiretap Claims"). The trial court ordered that the Robbins Parties take nothing by their claims against Taylor based on its granting of Taylor's summary judgment motion, in which she asserted attorney immunity.

1 See Tex. Code Crim. Pro. art. 18.20 § 16.

2 See Tex. Penal Code § 16.01, et seq.

3 See 18 U.S.C. § 2520.

4 See 18 U.S.C. § 2510, et seq.

The trial court signed an order granting the Robbins Parties' motion to compel discovery and ordered Pathway to respond to various requests for production, but only after the Robbins Parties paid Pathway's reasonable costs and attorney's fees associated with producing the requested items. The trial court ordered the Robbins Parties to pay the costs and attorney's fees. The trial court later ruled that the "reasonable cost of production" which the Robbins Parties had to pay to Pathway before obtaining the requested items was $9,374.50, which included payment for a Pathway employee (manager) and the hourly rate of the attorney for Pathway to review the material before producing it. The Robbins Parties paid Pathway this amount.

In addition to the Texas Wiretap Claims and the Federal Wiretap Claims, the Robbins Parties asserted claims against Pathway for negligence, intentional infliction of emotional distress, a civil claim under title 18, section 1030(g) of the United States Code,⁵ an invasion of privacy claim based on the alleged public disclosure of private facts, and a civil claim under section 143.001 of the Civil Practice and Remedies Code. ⁶ Pathway filed a summary judgment asserting various grounds, including the judicial proceedings privilege applicable to an expert witness. The trial court granted Pathway's summary judgment motion, and based on this ruling, ordered that the Robbins Parties take nothing by their claims against Pathway.

5 See 18 U.S.C. § 1030(g).

6 See Tex. Civ. Prac. & Rem. Code § 143.001.

After granting the summary judgment, the trial court severed Pathway's claims against Mark Broome and rendered a final judgment from which the Robbins Parties have timely appealed.

II. ISSUES AND ANALYSIS

On appeal, the Robbins Parties assert three issues, challenging (1) the trial court's order granting Taylor's summary judgment motion based on the affirmative defense of attorney-immunity, (2) the trial court's discovery orders requiring the Robbins Parties to pay Pathway costs of responding to the Robbins Parties' requests for production (the "Discovery Orders"), and (3) the trial court's order granting Pathway's summary judgment motion.

A. Did the trial court err in granting Taylor's summary judgment motion?

1. Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). A plaintiff moving for traditional summary judgment must conclusively establish all essential elements of its claim. Cullins v. Foster , 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex. 1986) ); see Tex. R. Civ. P. 166a(c). Traditional summary judgment for a defendant is proper when it (1) negates at least one element of each of the plaintiff's claims or (2) establishes all elements of an affirmative defense to each claim. Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997) ; Cullins , 171 S.W.3d at 530 (citing Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997) ); see Tex. R. Civ. P. 166a(c).

Once the moving party establishes its right to a traditional summary judgment, the burden shifts to the nonmoving party to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000) (per curiam) ; see Navy v. Coll. of the Mainland , 407 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We presume that all facts alleged by the Robbins Parties are true and indulge all reasonable inferences in the light most favorable to the Robbins Parties. Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015).

2. Attorney-Immunity Defense

Attorney immunity is an affirmative defense that protects attorneys from liability to nonclients. Cantey Hanger , 467 S.W.3d at 481 (citing Sacks v. Zimmerman , 401 S.W.3d 336, 339–40 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) ; Kruegel v. Murphy , 126 S.W. 343, 345 (Tex. Civ. App. 1910, writ ref'd) ). The purpose of the attorney-immunity defense is to ensure loyal, faithful, and aggressive advocacy to clients. Cantey Hanger , 467 S.W.3d at 481. To be entitled to summary judgment, Taylor must prove that there is no genuine issue of material fact as to whether her conduct was protected by attorney immunity and that she is entitled to judgment as a matter of law. See id.

The Texas Supreme Court recently affirmed that Cantey Hanger controls our analysis of attorney immunity. Youngkin v. Hines , 546 S.W.3d 675, 681–82 (Tex. 2018) (citing Cantey Hanger , 467 S.W.3d at 481 ). The Youngkin court recognized the breadth of the attorney-immunity doctrine yet made clear that the doctrine is not without limits. See id. The Cantey Hanger opinion identified the following "nonexhaustive examples that may fall outside the reach of the attorney-immunity defense": participation in a fraudulent business scheme with a client, knowingly helping a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial. Id. ; Cantey Hanger, LLP , 467 S.W.3d at 482–83. All of these examples appear to refer to either non-litigation conduct or conduct not alleged to be fraudulent; thus, none of these examples appear to include fraudulent conduct while representing a client in litigation. See Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 482–83. The Youngkin court states that these examples are "nonexhaustive," yet, as in Cantey Hanger , the supreme court did not articulate a legal standard for determining if conduct is not covered by the attorney-immunity doctrine. See Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 482–85. After listing the nonexhaustive examples, the Youngkin court ends by saying, "[t]hus, while we recognize that some fraudulent conduct, even if done on behalf of a client, may be actionable, [the plaintiff] does not allege any such behavior." Id. at 683. Simply put, the Youngkin court appears to have concluded that attorney immunity applied because the alleged conduct fell within the scope of the attorney's representation of the client and did not fall within any of the examples listed in the Cantey Hanger opinion. See id. at 681–83.

3. Alleged Criminal Conduct

Under their first issue, the Robbins Parties assert that the trial court erred in granting Taylor's summary judgment motion and rendering a take-nothing judgment in Taylor's favor based on attorney-immunity. Taylor sought a traditional summary judgment based on attorney-immunity and did not rely on any other summary judgment evidence. Therefore, we review the propriety of summary judgment based on the "Plaintiffs' First Amended Original Petition," the Robbins Parties' live pleading when the trial court granted Taylor's summary judgment motion. See Warwick Towers Council of Co-owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. , 298 S.W.3d 436, 444 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

The Robbins Parties assert that attorney-immunity does not apply to the conduct alleged in this case—alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute—because criminal conduct is "foreign to the duties of an attorney."

In Plaintiffs' First Amended Original Petition, the Robbins Parties allege the following facts regarding Taylor's conduct:

• Between July 18, 2013, and January 11, 2014, the sister-in-law of Robbins's ex-husband, Fiona McInally, received on her iPad text and email messages between Robbins and others.

• Plaintiffs' confidential and personal communications were intercepted without the Plaintiffs' knowledge or consent.

• Broome connected to his sister-in-law's iPad and received Robbins's communications.

• Broome shared the messages with his lawyer, Taylor.

• Taylor produced to Robbins's attorney in the Modification Proceeding ("Robbins's Attorney") a compact disc containing data from this iPad showing that the iPad's email settings had been changed to use Robbins's personal email address and password as the "setting for incoming e-mails."

• Robbins did not know that her text messages and emails were being intercepted until Taylor produced 617 pages of the Robbins Parties' text messages to Robbins's Attorney and told the attorney that Taylor and Broome were in possession of everything

Robbins had communicated to others, including a nude photograph of Robbins that Robbins had sent to her boyfriend by text message.

• Taylor told Robbins's Attorney that Taylor intended to use the photograph of Robbins's breasts as demonstrative evidence in the jury trial and that Taylor would show the jury a poster-size photo of Robbins's breasts.

• Taylor told Robbins's Attorney to advise Robbins to sign an agreed order resolving the Modification Proceeding and agreeing that the only visitation Robbins would have with her daughter would be supervised visitation, otherwise this evidence would be used against Robbins.

• After Robbins refused to sign Taylor's proposed order, Taylor filed a document in the Modification Proceeding entitled "Notice of Intent to Use Demonstrative Evidence," in which Taylor, on behalf of Broome, stated that Broome intended to use at trial a "Power Point presentation and large photo board."

• During the six months before February 5, 2014, Taylor had used information gleaned from illegally intercepted communications in the Modification Proceeding in several hearings and to conduct discovery.

• Broome disclosed the contents of Robbins's intercepted electronic communications to Taylor, who used and disclosed these contents to the trial court in the Modification Proceeding and in the pleadings in the Modification Proceeding.

• Taylor or Broome provided the iPad to Pathway for examination.

• Broome obtained a court order "through his attorneys' use of illegally intercepted communications on [the iPad]."

Additionally, in Plaintiffs' First Amended Original Petition, the Robbins Parties further pled the following:

Cause of Action

22. Texas Code of Criminal Procedure Sec. 18.20(16) states, "A person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of this article or in violation of Chapter 16, Penal Code, has a civil cause of action against any person who intercepts, discloses or uses or solicits another person to intercept, disclose or use the communication and is entitled to recover actual damages not less than liquidated damages of $100 per day for each day of violation or $1,000, whichever is higher, punitive damages and attorney's fees and litigation costs.

23. Defendants intercepted, disclosed or used the electronic communications of Plaintiffs in violation of Chapter 16, Penal Code....

Cause of Action: Federal Statute

24. The Federal Wiretap Act imposes liability on anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(a). The Act defines "intercept" to mean "the aural or other acquisition of the contents of any wire, electronic, or oral communications through the use of any electronic, mechanical, or other device." Id. at § 2510(4)....

25. Defendants intercepted, disclosed or intentionally used the electronic communications of Plaintiffs.

"Texas follows a ‘fair notice’ standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant." Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 896 (Tex. 2000). Our procedural rules merely require that the pleadings provide fair notice of the claim and the relief sought such that the opposing party can prepare a defense. In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding) (citing Tex. R. Civ. P. 45 & 47 ).⁷ A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases her claim. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 323, 346 (Tex. 2011). "Even the omission of an element is not fatal if the cause of action may be reasonably inferred from what is specifically stated." Lipsky , 460 S.W.3d at 590 (internal quotations omitted). Under this standard, courts assess whether an opposing party can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that might be relevant. Low v. Henry , 221 S.W.3d 609, 612 (Tex. 2007).

7 Rule 45 states a pleading shall "consist of a statement in plain and concise language of the plaintiff's cause of action.... That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole...." Rule 47 requires that a pleading contain "a short statement of the cause of action sufficient to give fair notice of the claim involved" for a claim for relief and "a demand for judgment for all the other relief to which the party deems himself entitled." Tex. R. Civ. P. 47(a), (c).

In this case, Taylor did not specially except to this pleading; thus, she cannot complain that Plaintiffs' First Amended Original Petition lacks specificity. "When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader." Auld , 34 S.W.3d at 897 (citing Boyles v. Kerr , 855 S.W.2d 593, 601 (Tex. 1993) ). "An opposing party should use special exceptions to identify defects in a pleading so that they may be cured, if possible, by amendment." See id. (citing Cameron v. Univ. of Houston , 598 S.W.2d 344, 345 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.) ).

Taylor, instead, filed a traditional summary judgment relying solely on the affirmative defense of attorney-immunity. Taylor neither contested the facts pled nor did she provide any evidence or affidavits in support of her motion for summary judgment. Presuming that all facts alleged by the Robbins Parties are true and indulging all reasonable inferences in the light most favorable to the Robbins Parties, the Robbins Parties allege sufficient facts demonstrating alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute. Neither Youngkin nor Cantey Hanger involved alleged criminal conduct by an attorney. See Youngkin , 546 S.W.3d at 681–83 ; Cantey Hanger, LLP , 467 S.W.3d at 481–85. And, the Texas Supreme Court did not extend attorney-immunity to criminal conduct in either case. Id.

A criminal violation of either statute would be "foreign to the duties of an attorney" and thus precludes application of attorney-immunity. We conclude the trial court erred in granting Taylor's motion for summary judgment based on the affirmative defense of attorney-immunity.

We sustain Taylor's first issue.

B. Did the trial court err in granting Pathway's summary judgment motion?

In their third issue, the Robbins Parties assert that the trial court erred in granting summary judgment for Pathway. Plaintiffs' Second Amended Original Petition sets forth the following causes of action against Pathway, asserting violation of: Texas and Federal wiretap statutes; negligence, gross negligence; intentional infliction of emotional distress ("IIED"); federal statute prohibiting computer fraud and abuse; publication of private facts; Texas statute prohibiting harmful access by computer; and civil conspiracy.

1. Pathway's defense of absolute immunity as to all claims

Pathway maintains it has a statutorily defined complete defense to all the Robbins Parties' claims. Pathway asserts that it is immune from liability under the judicial proceedings privilege. Pathway argues, "Plaintiffs have failed to advise the court that actions taken pursuant to a court order are a full and complete defense to actions brought under these statutes." According to Pathway, it was hired as an expert in a judicial proceeding and acted pursuant to the authority of a court order.

The Robbins Parties maintain that immunity afforded by the judicial-proceedings privilege does not apply to claims under the state or federal wiretap statutes. The Robbins Parties correctly note that Pathway does not cite any case in which a court applies this immunity to a claim under a wiretap statute. Moreover, the record reflects that on February 24, 2014, Broome and his attorney, Taylor, hired Pathway to provide expert assistance and expert witness testimony pertaining to the information that was discovered on the iPad. Pathway received the iPad on March 3, 2014 and extracted data and produced electronic copies of its contents. It was not until March 12, 2014, that the trial court signed an Order on Emergency Motion for Turnover of Respondent's Computer/Electronic Devices, Emergency Request for Inspection of Respondent's Computer Electronic Devices, and Request for Ex Parte Injunction. Thus, Pathway extracted information and produced copies prior to a hearing or an order in any judicial proceeding. As such, judicial proceeding immunity does not preclude the Robbins' Parties causes of action.

Moreover, the March 12 order did not mention or address the iPad and did not order Pathway or authorize Pathway to disclose the contents of the devices to anyone. Additionally, there is no summary judgment evidence that Robbins voluntarily gave her Apple ID and password to her daughter for the purpose of setting up the iPad to intercept electronic communications of Robbins. To the contrary, Robbins' unsworn declaration attached as Exhibit B to Plaintiffs' Amended Response to Pathway's Motion for Summary Judgment states that she never gave anyone permission to use her Apple ID and password to set up any device to receive her iMessages. At a bare minimum, the Robbins Parties established genuine issues of material fact prohibiting summary judgment.

2. Pathway's additional bases for summary judgment

In addition to absolute immunity, Pathway sets forth several other grounds, arguing that summary judgment was properly granted.

a. State and federal wiretap statutes

i. Pursuant to court order

Like its judicial proceeding argument, Pathway asserts that it cannot be held liable under the state and federal wiretap acts because it was acting pursuant to a court order. As set forth, supra , the record reflects that Pathway received the iPad, extracted data, and produced electronic copies of its contents prior to any judicial proceeding or court order. Additionally, after a court order was signed, Pathway's disclosures exceeded the scope of the order. As such, summary judgment was inappropriate on Pathway's defense of acting pursuant to court order.

ii. Failed to receive contemporaneous communications

Pathway next argues that the Robbins Parties did not allege a prima facie case under either the state or federal wiretap law because they allege the communications at issue were not contemporaneously intercepted as a matter of law. The Robbins Parties assert that Pathway is being sued for using and disclosing illegally intercepted electronic communications. Pathway concedes that it used and disclosed to Broome's attorney the electronic communications which the Robbins Parties maintain were illegally intercepted. A genuine issue of material fact exists as to whether Pathway violated the state and federal wiretap laws. See Tex. Code Crim. Proc. art. 18.20(16) ; 18 U.S.C. § 2511(a).

b. Negligence and gross negligence

Next, Pathway argues it was entitled to summary judgment on the claims of negligence and gross negligence. To prevail on a common law negligence claim, a plaintiff must be able to prove three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794, 798 (Tex. 2004). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). A plaintiff must prove the existence and violation of a duty owed by the defendant. Id. If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka , 994 S.W.2d 635, 637 (Tex. 1999).

Pathway maintains that it, as an adversary's expert witness, owed no duty to the Robbins Parties. Through the declaration of Vivian Robbins and the transcript of a recorded conversation, the Robbins Parties contend that a representative of Pathway promised Vivian Robbins that her data would not be turned over. According to the Robbins Parties, this conversation created a duty for which Pathway would be liable for negligence. The Robbins Parties, however, provide no authority for this assertion. As such, summary judgment on the negligence claim was proper.

c. Intentional infliction of emotional distress

Pathway asserts that summary judgment was proper as to intentional infliction of emotional distress.

The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff to suffer emotional distress; and (4) the emotional distress was severe. Hersh v. Tatum , 526 S.W.3d 462, 468 (Tex. 2017) ; Twyman v. Twyman , 855 S.W.2d 619, 621 (Tex. 1993). Because the issue of distress is dispositive, we do not address the outrageousness of Pathway's conduct or whether it was intentional or reckless.

Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, and worry. Behringer v. Behringer , 884 S.W.2d 839, 844 (Tex. App.—Fort Worth 1994, writ denied). For a plaintiff to recover, the distress must be so severe that no reasonable person should be expected to endure it. Id. (citation omitted). The plaintiff must prove that she suffered more than mere worry, anxiety, vexation, embarrassment, or anger. Regan v. Lee , 879 S.W.2d 133, 136 (Tex. App.—Houston [14th Dist.] 1994, no writ). Feelings of anger, depression, and humiliation are insufficient evidence of severe distress. Id. at 136–37. The Supreme Court has "set a high standard for extreme and outrageous conduct, holding that this element is only satisfied if the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Hersh , 526 S.W.3d at 468.

Pathway maintains that it relied on representations made by Mark Broome on February 24, 2014, that the electronic media or evidence sent to Pathway for examination or duplication was lawfully obtained, as set forth in its engagement letter with Broome. Pathway also asserts that it relied on compliance with the court's order. According to Pathway, its conduct did not exceed all possible bounds of decency, nor was its conduct utterly intolerable in a civilized community. We agree. Summary judgment was proper on this issue.

d. Computer fraud and abuse

Pathway contends that it cannot be liable for a violation of the federal Computer Fraud and Abuse Act ("CFAA") because the statute does not apply to a private computer.

The CFAA prohibits, inter alia , unauthorized access to a "protected computer" for the purposes of obtaining information, causing damage, or perpetrating fraud. 18 U.S.C. § 1030(a)(2), (a)(4), (a)(5). Although the CFAA is a criminal statute, subsection (g) provides a private right of action when one of five factors is present. See 18 U.S.C. § 1030(g).⁸

8 Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves one of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). See 18 U.S.C. § 1030(g).

Contrary to Pathway's allegation, the statute defines "protected activity" to include:

which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.

18 U.S.C. § 1030(e)(2)(B). The Robbins Parties maintain, and Pathway does not dispute, that the iPad was connected to the internet and used in interstate communication. Summary judgment on this ground was inappropriate.

e. Public disclosure of private facts

Pathway argues that summary judgment was appropriate because the facts regarding Vivian Robbins and those she communicated with via Apple iMessage are matters of legitimate public concern and were never published to anyone.

A plaintiff alleging public disclosure of private facts must show: that (1) publicity was given to matters concerning his private life; (2) the publication of such matter would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of legitimate public concern. Robinson v. Brannon , 313 S.W.3d 860, 868 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

In its summary judgment motion, Pathway contended that "the items in Pathway's report, which relate to the private matters of Vivian Robbins data was never published to anyone." According to Pathway, it "merely turned over its expert work product to its client, Mark Broome's attorney." Pathway further argues that "the subject matter of the data, namely the commission of crimes and prosecutions resulting therefrom are events of legitimate concern to the public and are therefore non-actionable." Turning over the Robbins Parties' private communications to Taylor constitutes publication by Pathway. With respect to Pathway's contention that the data involves matters of public concern, aside from its own, self-serving statement, Pathway provides no information from which to base the statement. As such, summary judgment was improper on this basis.

f. Harmful access by computer

Pathway claims that summary judgment was proper on the Robbins Parties' claim under the Harmful Access By Computer Act ("HACA")⁹ because Vivian Robbins consented to her daughter's use of her Apple ID password and that her daughter was using it on her aunt's iPad. Pathway further argues that there is no evidence in the record that suggests Pathway intentionally or knowingly accessed a computer belonging to any of the Robbins Parties with the intent to gain information obtained therein.

9 "A person who is injured or whose property has been injured as a result of a violation under Chapter 33, Penal Code, has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally." Tex. Civ. Prac. & Rem. Code § 143.001(a).

Section 143 of the Texas Civil Practices & Remedies Code creates a civil cause of action for violations as follows:

A person who is injured or whose property has been injured as a result of a violation under Chapter 33, Penal Code, has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally.

Tex. Civ. Prac. & Rem. Code § 143.001(a). Section 33.02 of the Texas Penal Code provides:

A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

Tex. Penal Code § 33.02(a). The word "knowingly" is defined by the Texas Penal Code § 6.03(b) as:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Tex. Penal Code § 6.03(b). And "effective consent" is defined in Texas Penal Code § 33.01(12) as:

"Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception, as defined by Section 31.01, or induced by coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

(D) given solely to detect the commission of an offense; or

(E) used for a purpose other than that for which the consent was given.

Tex. Penal Code § 33.01(12). Here, there is no summary judgment evidence that anyone had the effective consent of Vivian Robbins to access her Apple account. Rather, the Unsworn Declaration of Vivian Robbins rebuts any allegation to the contrary:

I had in the past allowed [my daughter] to use my Apple ID and password to download apps (games). I never gave [my daughter] my consent to use my Apple ID to allow any device to intercept and receive my text messages (something [my daughter] did not know how to do and which she adamantly denies she did on her aunt Fiona's iPad).

There are genuine issues of material fact that arise as to the issue of consent. Additionally, fact issues exist as to whether Pathway knowingly accessed the illegally intercepted communications for the purpose of obtaining information to give to Broome and Taylor.

g. Civil conspiracy

Pathway contends that summary judgment was proper because the Robbins Parties fail to set forth evidence that two or more people had a meeting of the minds to accomplish any unlawful objective because there was no unlawful objective or overt act. According to Pathway, the only reliable evidence is that Robbins' daughter typed her mother's password into her aunt's iPad on or before July 18, 2013.

The elements of civil conspiracy are that (1) two or more persons, (2) with an object to be accomplished, (3) with the meeting of minds on the object or course of action, (4) commit one or more unlawful or overt acts, (5) and causes damage or injury. Operation Rescue–Nat'l v. Planned Parenthood , 975 S.W.2d 546, 553 (Tex. 1998).

As set forth above, the unsworn declaration of Vivian Robbins controverts the voluntariness of the consent because she never gave her daughter her consent to use her Apple ID to allow any device to intercept and receive her text messages and, the declaration further provides, that the daughter did not know how to make this connection and she denied having done so on her aunt's iPad. At a minimum, there is a genuine issue of material fact as to whether Pathway, Broome, and Taylor violated the state and federal laws on the illegal inception of her electronic communications. Hence, summary judgment was improper.

h. Punitive damages

Pathway argues that the Robbins Parties have no evidence of fraud, malice, or gross negligence and, thus, cannot recover punitive damages. The standard for recovery of exemplary damages is set forth in Section 41.003 of the Texas Civil Practice & Remedies Code :

(a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:

(1) fraud;

(2) malice; or

(3) gross negligence.

Tex. Civ. Prac. & Rem. Code § 41.003. Here, the Robbins Parties failed to produce evidence of fraud, malice, or gross negligence. Thus, summary judgment was proper.

In sum, the Robbins Parties' third issue is sustained in part (i.e. , summary judgment improper on state and federal wiretap claims, CFAA claim, public disclosure of private facts claim, HACA claim, and civil conspiracy) and overruled in part (i.e. , summary judgment proper on negligence and gross negligence claims, IIED claim, and punitive damages).

C. Did the trial court err in requiring the Robbins Parties to pay Pathway the expense of producing items in response to their requests for production?

In their second issue, the Robbins Parties assert that the trial court abused its discretion by ordering them, without a showing of good cause, to pay Pathway $9,374.50 before Pathway produced any items in response to the Robbins Parties' requests for production.

1. Standard of Review

We review discovery orders for an abuse of discretion. A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985). "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Id. at 242. However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

2. Rule 196.6 Expense of Production

Rule 196.6 provides that "[u]nless otherwise ordered by the court for good cause, the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party." Tex. R. Civ. P. 196.6.

The Robbins Parties served requests for production on Pathway, to which Pathway objected. The Robbins Parties filed a motion to compel discovery, and Pathway moved for protection from this discovery. Pathway also asked the trial court to order the Robbins Parties to pay its reasonable costs and attorney's fees, including the cost of employee and attorney time in reviewing the material responsive to the request for production. After a hearing, the trial court signed an order in which it granted the Robbins Parties' motion to compel discovery, denied Pathway's motion for protection, and granted Pathway's request that the Robbins Parties pay reasonable costs and attorney's fees associated with producing the requested items. The trial court ordered that, upon the Robbins Parties' payment of Pathway's costs and attorney's fees associated with producing the requested items, Pathway should produce the items requested in the Robbins Parties' requests for production.

After the Robbins Parties disputed the amount the Robbins Parties had to pay, they filed a motion to determine the reasonable cost of production. After a hearing, the trial court signed an order finding that "that the reasonable cost of production for the work done as a result of [the Robbins Parties'] first request for production is $9,374.50 and that [the Robbins Parties] are required to pay the above sum to Pathway before the production of documents." The Robbins Parties paid Pathway this amount and received the documents and data requested. The Robbins Parties point out that part of the $9,374.50 is for payment of attorney's fees for Pathway's counsel.

3. No "Good Cause" Shown

In their motion to reconsider, the Robbins Parties objected to the lack of good cause to support the trial court's order requiring the Robbins Parties to pay costs. Because neither the record nor the trial court's orders demonstrate a showing of good cause for the requesting party to pay the responding parties' costs and attorney's fees, we conclude the trial court abused its discretion in issuing the Discovery Orders. See Tex. R. Civ. P. 196.6.

We sustain the Robbins Parties' second issue.

III. CONCLUSION

The Robbins Parties have shown that the trial court erred in granting Taylor summary judgment and in part, Pathway's summary judgment motions. Additionally, the Robbins Parties have shown that the trial court abused its discretion by ordering, without a finding of good cause, the Robbins Parties, rather than Pathway, to pay the expense of producing items responsive to production requests. We affirm in part, reverse and render in part, and reverse and remand the case for proceedings consistent with this opinion.

( Frost, C.J., dissenting).

DISSENTING OPINION

Kem Thompson Frost, Chief Justice, dissenting.

The events that spurred this attorney-immunity case arose out of a child-custody modification suit between ex-spouses embroiled in litigation. The ex-wife and other plaintiffs brought claims against the ex-husband's attorney in the modification suit and a company the ex-husband hired to provide expert testimony in that suit, asserting illegal interception of the plaintiffs' electronic communications. On appeal, three appellants/plaintiffs challenge the trial court's orders granting two appellees/defendants' summary-judgment motions, and one of the trial court's discovery orders. Because the appellants have not shown that the trial court erred, this court should affirm the trial court's judgment. Instead, the court reverses. The majority uses an attorney-immunity analysis that conflicts with binding precedent from the Supreme Court of Texas. The majority also addresses unpreserved error — the appellants' complaint about the trial court's costs assessment in the discovery order — and then reverses the trial court's decision without saying why or how the trial court abused its discretion. Because these departures from settled precedent cause the court to render the wrong judgment, I respectfully dissent.

I. SUMMARY JUDGMENT FOR TAYLOR

The appellants have not shown that the trial court erred in granting the attorney's summary-judgment motion.

Under their first issue, appellants/plaintiffs Carl Tolbert, Nizzera Kimball, and Vivian Robbins (collectively the "Robbins Parties") assert that the trial court erred in granting appellee/defendant Terisa Taylor's summary-judgment motion and rendering a take-nothing judgment in Taylor's favor based on attorney immunity. Taylor sought a traditional summary judgment and did not rely on any summary-judgment evidence.¹ The Robbins Parties did not object to Taylor's request for summary judgment on the pleadings, and they did not request an opportunity to amend their pleadings. So, we are to review the propriety of summary judgment based on the "Plaintiffs' First Amended Original Petition," the Robbins Parties' live pleading at the time the trial court granted Taylor's summary-judgment motion.² In determining whether the trial court erred in granting Taylor's motion, we are to presume the truth of all facts the Robbins Parties alleged and indulge all reasonable inferences in the light most favorable to the Robbins Parties.³ We are not to presume the truth of any legal conclusions stated in the pleadings.⁴

1 Taylor said she was relying upon the Robbins Parties' live pleading as summary-judgment evidence, but a party's pleading is not summary-judgment evidence. See LaGoye v. Victoria Wood Condominium Ass'n , 112 S.W.3d 777, 787 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

2 See Warwick Towers Council of Co-owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. , 298 S.W.3d 436, 444 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

3 Id.

4 Id.

1. Attorney Immunity

In the 1882 case of Poole v. Houston & Texas Central Railway Company , the Supreme Court of Texas addressed the alleged fraud of a defendant, noting evidence that when this defendant committed the alleged fraud, he was acting as attorney for other participants in the alleged fraud, though not in the context of litigation.⁵ The high court rejected the notion that the defendant's status as an attorney representing a client would give the attorney immunity from liability to the party allegedly damaged by the fraud:

5 See Poole v. Houston & T.C. Ry. Co. , 58 Tex. 134, 137 (Tex. 1882).

Having assumed the apparent ownership of the goods, for the purpose and with the intention of consummating the fraud upon [the plaintiff], [the attorney] will not be heard to deny his liability to [the plaintiff] for the loss sustained by reason of his wrongful acts, under the privileges of an attorney at law, for such acts are entirely foreign to the duties of an attorney ; neither will he be permitted, under such circumstances, to shield himself from liability on the ground that he was the agent of [his clients], for no one is justified on that ground in knowingly committing wil[l]ful and premeditated frauds for another.⁶

6 Poole , 58 Tex. at 137–38 (emphasis added).

Texas's intermediate courts of appeals later developed various approaches to delineating the scope of an attorney's immunity from liability to a claimant for allegedly actionable conduct while representing a client in a matter in which the claimant was an opposing party. The Fourteenth Court of Appeals concluded that though attorneys owe no negligence duty to opposing parties, an attorney still faces potential liability to nonclients, including opposing parties, based on the attorney's fraudulent or malicious conduct, even if the attorney was acting in the course of representing the client.⁷ This court decided that, if an attorney engages in fraudulent or malicious conduct in the course of representing the attorney's client, an opposing party may assert intentional tort claims against the attorney based upon this conduct.⁸ This court concluded that, once a defendant showed that the attorney undertook the allegedly actionable conduct in the legal representation of a third-party client, the claimant then had to do one of two things: (1) raise a fact issue as to whether the attorney engaged in the conduct in the representation of a third-party client or (2) plead sufficient facts to show that the plaintiff asserts one or more claims that fall within an exception to attorney immunity.⁹

7 Lackshin v. Spofford , No. 14-03-00977-CV, 2004 WL 1965636, at *3 (Tex. App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.). See also JJJJ Walker, LLC v. Yollick , 447 S.W.3d 453, 468 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (stating that "it is well established that an attorney can be held liable for his own fraudulent conduct even though it was performed on a client's behalf"); James v. Easton , 368 S.W.3d 799, 803 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (stating that, if an attorney engages in fraudulent or malicious conduct in the course of representing his client, an opposing party may assert intentional tort claims against the attorney based upon this conduct).

8 Lackshin , 2004 WL 1965636, at *3.

9 Id.

Other courts of appeals recognized categorical exceptions to the attorney-immunity doctrine, but they characterized the exceptions as "fraudulent or criminal" conduct rather than "fraudulent or malicious conduct."¹⁰ Still other courts of appeals took a broader view of attorney immunity and did not recognize either of these categorical exceptions.¹¹

10 See Rawhide Mesa-Partners, Ltd. v. Brown McCarroll, L.L.P. , 344 S.W.3d 56, 60 (Tex. App.—Eastland 2011, no pet.).

11 See Alpert v. Crain, Caton & James, P.C. , 178 S.W.3d 398, 405–08 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

In the wake of these decisions, the Supreme Court of Texas, in Cantey Hanger, LLP v. Byrd , addressed the legal standard applicable to attorney immunity from the claims of an opposing party in the litigation context.¹² The Cantey Hanger court stated that the law does not protect attorneys from liability to non-clients for their actions when the actions do not qualify as " ‘the kind of conduct in which an attorney engages when discharging his duties to his client.’ "¹³ The high court gave as an example of such conduct an attorney's participation in a fraudulent business scheme with the attorney's client and stated that the Poole court had found such acts to be " ‘entirely foreign to the duties of an attorney.’ "¹⁴ The Cantey Hanger court also suggested that other examples of such conduct include an attorney knowingly assisting the client in committing a fraudulent transfer and a situation in which an attorney commits physical assault during trial.¹⁵

12 See 467 S.W.3d 477, 481–85 (Tex. 2015) ; U.S. Bank Nat'l Ass'n v. Sheena , 479 S.W.3d 475, 478–79 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

13 Cantey Hanger, LLP , 467 S.W.3d at 482 (quoting Dixon Financial Servs. v. Greenberg, Peden, Siegmyer & Oshman, P.C. , No. 01-06-00696-CV, 2008 WL 746548, at *9 (Tex. App.—Houston [1st Dist.] Mar. 20, 2008, pet. denied) (mem. op.) ).

14 Id. (quoting Poole , 58 Tex. at 138 ).

15 See id. (citing Essex Crane Rental Corp. v. Carter , 371 S.W.3d 366, 382 (Tex. App.—Houston [1st Dist.] 2012, pet. denied), and referring to a hypothetical stated in Bradt v. West , 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1994, writ denied) ).

The Cantey Hanger court, after taking note of both the line of cases adopting categorical exceptions to the attorney-immunity doctrine and the line of cases rejecting categorical exceptions, disapproved of the cases recognizing categorical exceptions and generally approved of the other line of cases, stating that the latter are "consistent with the nature and purpose of the attorney-immunity defense."¹⁶ The high court suggested that (1) an attorney's knowing commission of a fraudulent act "outside the scope of his legal representation of the client" is actionable; and (2) an attorney's participation in "independently fraudulent activities" is considered "foreign to the duties of an attorney" and is not shielded from liability.¹⁷ In analyzing the issues, the supreme court stated that an attorney's conduct may be wrongful yet still fall within the scope of client representation and still be protected by attorney immunity.¹⁸ The Cantey Hanger court stated that fraud is not an exception to attorney immunity but that the immunity defense does not extend to fraudulent conduct falling outside the scope of an attorney's legal representation of the attorney's client, just as it does not extend to other wrongful conduct falling outside the scope of representation.¹⁹ The high court concluded that an attorney who pleads the affirmative defense of attorney immunity bears the burden to show that the attorney's alleged wrongful conduct, even if it is alleged to be fraudulent, forms part of the discharge of the attorney's duties to the client.²⁰

16 Cantey Hanger, LLP , 467 S.W.3d at 483.

17 See id. at 483–85.

18 See id. at 485.

19 See id. at 484.

20 See id.

The Cantey Hanger court disagreed with the court of appeals's conclusion that an attorney's intentional misrepresentations made for the purpose of conferring a benefit on the attorney's client fall outside the scope of the attorney's duties to the client.²¹ The high court indicated that an attorney's conduct may be fraudulent and still fall within the scope of the attorney's representation of the client.²² The Cantey Hanger court found the law firm entitled to summary judgment on its defense of attorney immunity because the law firm conclusively established that its allegedly fraudulent conduct fell within the scope of its representation of a client in divorce proceedings and was not foreign to the duties of an attorney.²³

21 See id. at 485.

22 See id.

23 See id.

In part of the Cantey Hanger opinion, the supreme court appears to say that a defendant asserting attorney immunity in a litigation context need only show that the allegedly actionable conduct, even if it is alleged to be fraudulent, was part of the discharge of the attorney's duties to the client in the litigation context.²⁴ Given the high court's conclusion that an attorney's fraudulent misrepresentations still may fall within the scope of the attorney's representation of the client, if this were the only requirement for attorney immunity, then an attorney would enjoy complete immunity from civil liability for all conduct committed during the representation of a client in litigation, even if the conduct was fraudulent (hereinafter "Complete Immunity Rule").²⁵

24 See id. at 483–84.

25 See id. at 483–85.

In another part of the Cantey Hanger opinion the high court appears to say that one asserting attorney immunity in a litigation context must show that (1) the attorney's allegedly actionable conduct, even if alleged to be fraudulent, formed part of the discharge of the attorney's duties to the client in the litigation context; and (2) the allegedly actionable conduct was not "foreign to the duties of an attorney" (hereinafter "Partial Immunity Rule").²⁶ Under this rule, an attorney would be immune from civil liability for the attorney's fraudulent or wrongful conduct committed while representing a client in litigation if the conduct was not "foreign to the duties of an attorney," but the attorney would not be immune from civil liability for fraudulent or wrongful conduct that was "foreign to the duties of an attorney."²⁷ To apply the Partial Immunity Rule, courts would need to distinguish between conduct "foreign to the duties of an attorney" and conduct not foreign to these duties. Though the Cantey Hanger court concluded that the law firm's allegedly fraudulent conduct was not "foreign to the duties of an attorney," the court did not articulate the legal standard it used to make this determination.²⁸

26 See id. at 485.

27 See id.

28 See id. at 482–85.

In Youngkin v. Hines , the supreme court again addressed attorney immunity in the litigation context.²⁹ The Youngkin court applied an analysis similar to that of the Cantey Hanger court and held that attorney immunity barred a plaintiff's claim against an attorney who had represented an opponent of the plaintiff in litigation, alleging the attorney knowingly participated in a fraudulent scheme to deprive the plaintiff of his property.³⁰ In Youngkin , the essence of the attorney's alleged fraudulent conduct consisted of (1) entering into an agreement under Texas Rule of Civil Procedure 11 on his clients' behalf knowing that his clients had no intention to comply; (2) helping his clients avoid compliance with the agreement by preparing the deed used to transfer their property interest to one of the attorney's other clients; and (3) aiding the other client in efforts to wrongfully assert ownership over a portion of the property by filing a lawsuit.³¹

29 See 546 S.W.3d 675, 681–83 (Tex. 2018).

30 See id.

31 See id. at 679.

The Youngkin court stated that the Cantey Hanger opinion controlled the analysis in Youngkin. ³² Looking to Cantey Hanger , the supreme court emphasized that an attorney enjoys immunity from liability to nonclients for conduct falling within the scope of client representation.³³ According to the Youngkin court, an attorney may be liable to nonclients only for outside-the-scope-of-client-representation conduct or for foreign-to-the-duties-of-a-lawyer conduct.³⁴ The attorney-immunity inquiry focuses on the kind of conduct at issue rather than the plaintiff's allegation that the conduct is wrongful.³⁵ The high court declared that "a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful."³⁶

32 See id. at 681.

33 See id.

34 See id.

35 See id.

36 Id.

Looking beyond the plaintiff's assertion that the attorney engaged in fraudulent conduct, the Youngkin court determined that the attorney's allegedly actionable conduct fell directly within the scope of the attorney's representation of his client.³⁷ The Youngkin court stressed the policy behind attorney immunity — removing lawyers' fear of personal liability so as to promote faithful and aggressive representation by lawyers of their clients.³⁸ The Youngkin court recognized the breadth of the attorney-immunity doctrine, yet made clear that the doctrine is not without limits.³⁹ The high court stated that the Cantey Hanger opinion identified the following "nonexhaustive examples that may fall outside the reach of the attorney-immunity defense":

37 See id. at 682.

38 See id.

39 See id.

• participation in a fraudulent business scheme with a client,

• knowingly helping a client with a fraudulent transfer to avoid paying a judgment,

• theft of goods or services on a client's behalf, and

• assaulting opposing counsel during trial.⁴⁰

40 Id. ; Cantey Hanger, LLP , 467 S.W.3d at 482–83.

The Youngkin court said these examples are "nonexhaustive," yet, as in Cantey Hanger , the supreme court did not articulate a legal standard for determining if conduct is not covered by the attorney-immunity doctrine.⁴¹ After listing the nonexhaustive examples, the Youngkin court ends by saying, "[t]hus, while we recognize that some fraudulent conduct, even if done on behalf of a client, may be actionable, [the plaintiff] does not allege any such behavior."⁴² Simply put, the Youngkin court appears to have concluded that attorney immunity applied because the alleged conduct fell within the scope of the attorney's representation of the client and did not fall within any of the examples listed in the Cantey Hanger opinion.⁴³

41 See Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 482–85.

42 Youngkin , 546 S.W.3d at 683.

43 See id. at 681–83.

Recently, in the Bethel case, the supreme court addressed the applicability of the attorney-immunity doctrine to allegedly criminal conduct committed by an attorney while representing a client in the litigation context.⁴⁴ The Bethel court rejected the plaintiff's request that the high court create a categorical exception to the Cantey Hanger analysis for allegedly criminal conduct by an attorney and applied the Cantey Hanger analysis to allegedly criminal conduct during the course of litigation.⁴⁵ This holding is consistent with the holdings of other courts on this issue.⁴⁶

44 See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , No. 18-0595, ––– S.W.3d ––––, –––– – ––––, 2020 WL 938618, at *4–5 (Tex. Feb. 21, 2020).

45 See id.

46 See Troice v. Greenberg Traurig, L.L.P. , 921 F.3d 501, 506–07 (5th Cir. 2019) (applying Texas law) ; Dorrell v. Proskauer Rose, LLP , No. 3:16-CV-1152-N, 2017 WL 6764690, at *5–6 (N.D. Tex Nov. 2, 2017) (applying Texas law) ; Highland Capital Management, LP v. Looper Reed & McGraw, P.C. , No. 05-15-00055-CV, 2016 WL 164528, at 1–4, 6 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.).

The Bethel court concluded that exempting allegedly criminal conduct from the Cantey Hanger analysis would "significantly undercut" the protections of attorney immunity by allowing non-client plaintiffs to sue opposing counsel so long as the plaintiffs alleged that the attorney's actions were criminal.⁴⁷ The high court reiterated that attorney immunity under the Cantey Hanger analysis is not boundless and that an attorney does not enjoy immunity from civil suit for participating in criminal conduct outside the scope of the attorney's representation of a client.⁴⁸ The Bethel court stated that a wide range of criminal conduct does not fall within the "scope of client representation" and therefore is "foreign to the duties of an attorney."⁴⁹ Though the high court declined to recognize a categorical exception for criminal conduct, the court stated that "an attorney's allegedly criminal conduct may fall outside the scope of attorney immunity."⁵⁰ The Bethel court observed that an attorney's immunity from civil suit based on allegedly criminal conduct does not shield the attorney from criminal liability if the conduct constitutes a criminal offense.⁵¹ The high court also noted that sanctions, spoliation instructions, contempt, and attorney-disciplinary proceedings may be available, even if immunity shields an attorney's wrongful conduct.⁵²

47 See Bethel , ––– S.W.3d at ––––, 2020 WL 938618, at *4.

48 See id.

49 Id.

50 Id.

51 See id.

52 See id.

According to the Bethel court, even taking the plaintiffs' factual allegations as true, the actions in question — the examination and testing of evidence during discovery — were the kinds of conduct in which an attorney engages while representing a client in litigation, and the attorneys were immune from civil liability even if the conduct constituted criminal destruction of property, as the plaintiff alleged.⁵³ The high court concluded that attorney immunity likely would not apply if an attorney "destroyed a non-client's property that was unrelated to litigation."⁵⁴ The Bethel court also stated that attorney immunity likely would not apply if an attorney used a sledgehammer to destroy a non-client's property that was related to litigation, because wielding a sledgehammer to destroy property does not involve the provision of legal services.⁵⁵ The high court concluded that because the attorney's conduct — acting in conjunction with experts to examine and test key evidence in the underlying suit — involved the rendition of legal services, the attorney-immunity doctrine protected that conduct and prevented a non-client from seeking to hold the attorney civilly liable, even if the conduct was allegedly criminal.⁵⁶

53 See id. at ––––, 2020 WL 938618, at *5.

54 See id.

55 See id.

56 See id.

2. The Allegedly Criminal Conduct

The Robbins Parties asserted against Taylor and appellee/defendant Pathway Forensics, LLC: (1) civil claims under former article 18.20, section 16 of the Code of Criminal Procedure⁵⁷ (" Article 18.20") based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications in violation of Chapter 16 of the Penal Code⁵⁸ (the "Texas Wiretap Claims") and (2) civil claims under title 18, section 2520 of the United States Code⁵⁹ based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications in violation of title 18, chapter 119 of the United States Code⁶⁰ (the "Federal Wiretap Claims"). Under their first issue, the Robbins Parties assert that attorney immunity does not apply to the Texas Wiretap Claims and the Federal Wiretap Claims against Taylor because the Robbins Parties base these claims on Taylor's alleged criminal conduct. The Robbins Parties assert that attorney immunity does not apply to these claims because Taylor's alleged acts on which these claims are based constitute criminal conduct that is "foreign to the duties of an attorney."

57 See Tex. Code Crim. Proc. Ann. art. 18.20, § 16 (West 2015). The Legislature repealed this statute effective January 1, 2019.

58 See Tex. Pen. Code Ann. § 16.01, et seq. (West 2015).

59 See 18 U.S.C. § 2520.

60 See 18 U.S.C. § 2510, et seq.

The potential violation of chapter 16 of the Penal Code that the Robbins Parties raise on appeal as the basis for the Texas Wiretap Claims rests in section 16.02(b), which prohibits (1) intentionally intercepting an electronic communication, (2) intentionally disclosing to another person the contents of an electronic communication, knowing or having reason to know that the information was obtained through the interception of an electronic communication in violation of section 16.02(b) of the Penal Code, or (3) intentionally using the contents of an electronic communication, knowing or being reckless about whether the information was obtained through the interception of an electronic communication in violation of section 16.02(b) of the Penal Code.⁶¹

61 See Tex. Pen. Code Ann. § 16.02.

The violation of title 18, chapter 119 of the United States Code that the Robbins Parties raise on appeal as the basis for the Federal Wiretap Claims is a violation of title 18, section 2511 of the United States Code (the "Federal Wiretap Act") by (1) intentionally intercepting an electronic communication, (2) intentionally disclosing to any other person the contents of an electronic communication, knowing or having reason to know that the information was obtained through the interception of an electronic communication in violation of title 18, section 2511(1) of the United States Code, or (3) intentionally using the contents of an electronic communication, knowing or having reason to know that the information was obtained through the interception of an electronic communication in violation of title 18, section 2511(1) of the United States Code.⁶²

62 See 18 U.S.C. § 2511(a),(c),(d).

The Robbins Parties base all of the Federal Wiretap Claims and Texas Wiretap Claims on the alleged interception of an electronic communication.⁶³ For there to have been an "interception" of an electronic communication under the Federal Wiretap Act or Texas wiretap statute, there would have to have been a contemporaneous acquisition of the communication when it was sent.⁶⁴ Accessing a person's stored emails or text messages without the person's authorization does not constitute "interception" because it is not done contemporaneously with the original transmission of the email or text message.⁶⁵ No one alleges contemporaneous acquisition in this case.

63 See 18 U.S.C. § 2511(a),(c),(d) ; Tex. Pen. Code Ann. § 16.02.

64 See Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113–14 (11th Cir. 2003) (holding under the Federal Wiretap Act that an interception does not occur absent a contemporaneous acquisition of the communication when it was sent); Talon Transaction Technologies, Inc. v. StoneEagle Servs., Inc. , No. 3:13-cv-00902-P, 2013 WL 12172926, at *4–5 (N.D. Tex. Aug. 15, 2013) (holding that Article 18.20 and section 16.02 of the Texas Penal Code should be interpreted the same way as the Federal Wiretap Act and that under the Texas and Federal statutes an interception does not occur absent a contemporaneous acquisition of the communication when it was sent); Bailey v. Bailey , No. 07-11672, 2008 WL 324156, at *4 (E.D. Mich. Feb. 6, 2008) (holding under the Federal Wiretap Act that an interception does not occur absent a contemporaneous acquisition of the communication when it was sent).

65 See Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5.

The next step is to examine the Robbins Parties' live pleading at the time of the summary judgment to determine if, under the applicable standard of review, the Robbins Parties alleged facts showing criminal conduct by Taylor in violation of chapter 16 of the Penal Code and title 18, chapter 119 of the United States Code.⁶⁶ In this live pleading, the Robbins Parties allege the following facts:

66 See Warwick Towers Council of Co-owners ex rel. St. Paul Fire & Marine Ins. Co. , 298 S.W.3d at 444.

• In April 2013, Robbins's ex-husband, Mark Broome filed a child-custody modification proceeding against his ex-wife, Robbins, regarding custody of their daughter (the "Modification Proceeding").

• Starting on July 18, 2013, a tablet computer owned by the sister-in-law of Broome (the "Tablet") began to receive text messages and emails between Robbins and others (collectively, the "Messages").

• The Robbins Parties' confidential and personal communications were appearing on the Tablet without the Robbins Parties' knowledge or consent.

• Broome's sister-in-law or his brother mailed the Tablet to Broome, who "then had to intentionally connect [the Tablet] up to his home WiFi network at least twice so it could start receiving [Robbins's] communications again."

• Broome's attorney, Taylor, apparently inadvertently produced a CD containing data from the Tablet to Robbins's attorney in the Modification Proceeding ("Robbins's Attorney"), on April 2, 2014, and that data shows the Tablet's email settings had been changed to use Robbins's personal email address and password as the "setting for incoming e-mails." This action amounts to something much more than use of Robbins's "Apple ID" and password to download games or even use a text message application.

• Someone intentionally set the Tablet to capture Robbins's incoming emails.

• Broome's "Emergency Motion for Turnover of Respondent's Computer/Electronic Devices," filed on March 3, 2014, revealed that Broome knew the contents of Robbins's emails as well as her text messages.

• Broome filed a pleading entitled "Mark Broome's Brief on Interception of Communications" which states, "We know that Mark Broome ("Mark") obtained a number of communications sent to, or sent by, [Robbins]." Broome has to this day never produced the emails he intercepted from Robbins.

• Broome shared the Messages with his lawyer, Taylor.

• Robbins did not know that her text messages and emails were being intercepted until Taylor produced 617 pages of her text messages to Robbins's Attorney and told the attorney that Taylor and Broome were in possession of everything Robbins had communicated to others, including a nude photograph of Robbins that Robbins had sent to her boyfriend by text message.

• Taylor told Robbins's Attorney that Taylor intended to use the photograph of Robbins's breasts as demonstrative evidence in the jury trial and that Taylor would show the jury a poster-size photo of Robbins's breasts.

• Taylor told Robbins's Attorney to advise Robbins to sign an agreed order resolving the Modification Proceeding and agreeing that the only visitation Robbins would have with her daughter would be supervised visitation, otherwise this evidence would be used against Robbins.

• After Robbins refused to sign Taylor's proposed order, Taylor filed a document in the Modification Proceeding entitled "Notice of Intent to Use Demonstrative Evidence," in

which Taylor, on behalf of Broome, stated that Broome intended to use at trial a "Power Point presentation and large photo board."

• During the six months before February 5, 2014, Taylor had used information gleaned from illegally intercepted communications in the Modification Proceeding in several hearings and to conduct discovery.

• Broome disclosed the contents of Robbins's intercepted electronic communications to Taylor, who used and disclosed these contents to the trial court in the Modification Proceeding and in the pleadings in the Modification Proceeding.

• Taylor or Broome provided the Tablet to Pathway for examination.

• Broome obtained a court order "through his attorneys' use of illegally intercepted communications on [the Tablet]."

The Robbins Parties' pleading also contains legal conclusions,⁶⁷ but, as noted at the outset, this court must not presume the truth of legal conclusions.⁶⁸

67 These legal conclusions include the following: (1) "Defendants intercepted, disclosed or used the electronic communications of [the Robbins Parties] in violation of Chapter 16, Penal Code." and (2) "Defendants intercepted, disclosed or intentionally used the electronic communications of [the Robbins Parties]."

68 See Warwick Towers Council of Co-owners ex rel. St. Paul Fire & Marine Ins. Co. , 298 S.W.3d at 444.

Focusing on the kind of conduct alleged rather than the alleged criminality of this conduct, the Robbins Parties base their claims against Taylor on Taylor's alleged receipt of data from her client regarding the Modification Proceeding, Taylor's alleged production of data to opposing counsel in the Modification Proceeding, Taylor's alleged statements to opposing counsel regarding evidence that Taylor intended to use at trial in the Modification Proceeding, Taylor's alleged statement to opposing counsel that Robbins should agree to an order resolving the Modification Proceeding otherwise this evidence would be used against Robbins, Taylor's alleged filing of a notice of intent to use evidence with the trial court in the Modification Proceeding, Taylor's alleged receipt of electronic communications from her client, Taylor's alleged use of this information in the Modification Proceeding, Taylor's disclosure of this information to the trial court in the Modification Proceeding, Taylor's alleged providing of the Tablet to Pathway (a company providing expert witnesses) for examination, and Taylor's alleged use of the communications on the Tablet to obtain a court order in the Modification Proceeding. Under the Cantey Hanger analysis, this alleged conduct falls squarely within the scope of Taylor's representation of Broome in the Modification Proceeding.⁶⁹ So, if the Complete Immunity Rule applies, then attorney immunity would bar the Texas Wiretap Claims and the Federal Wiretap Claims against Taylor, even if the claims are based on Taylor's alleged criminal conduct.⁷⁰

69 See Youngkin , 546 S.W.3d at 681–83 ; Cantey Hanger, LLP , 467 S.W.3d at 484–85 ; Highland Capital Management, LP , 2016 WL 164528, at *1–4, 6.

70 See Cantey Hanger, LLP , 467 S.W.3d at 483–85.

If the Partial Immunity Rule applies, then attorney immunity would not bar these claims if Taylor's alleged criminal conduct was "foreign to the duties of an attorney."⁷¹ As a basis for the Texas Wiretap Claims and the Federal Wiretap Claims, the Robbins Parties assert that the defendants, including Taylor violated chapter 16 of the Penal Code and title 18, chapter 119 of the United States Code. As to the potential criminality of Taylor's conduct, even viewing the Robbins Parties' live pleading under our deferential standard of review, it is clear they do not assert that Taylor "intercepted" any electronic communication, and the facts pled and the reasonable inferences therefrom do not show that Taylor "intercepted" any electronic communication by acquiring the communication at the same time as it was being sent.⁷²

71 See id. at 485.

72 See 18 U.S.C. § 2511(a) ; Tex. Pen. Code Ann. § 16.02 ; Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5.

Though the Robbins Parties allege that Taylor disclosed the contents of Robbins's intercepted electronic communications to the trial court in the Modification Proceeding and in the pleadings in the Modification Proceeding, the Robbins Parties do not allege that Taylor made any such disclosure knowing or having reason to know that the information was obtained through the interception of an electronic communication in violation of section 16.02(b) of the Penal Code or in violation of title 18, section 2511(1) of the United States Code.⁷³ Neither do the Robbins Parties allege facts from which the foregoing proposition reasonably may be inferred.

73 See 18 U.S.C. § 2511(c) ; Tex. Pen. Code Ann. § 16.02.

In addition, the facts pled in the Robbins Parties' live pleading and the reasonable inferences therefrom do not show that Broome, his sister-in-law, or anyone else "intercepted" any of the Robbins Parties' electronic communications by acquiring any communication at the same time as it was being sent.⁷⁴ The Robbins Parties do not allege that their emails or text messages were acquired contemporaneously when the emails or text messages were sent. Instead, they allege unauthorized access to their emails or text messages after those communications were sent, which does not fall within the purview of either the Federal Wiretap Act or the state statutes on which the Robbins Parties base the Texas Wiretap Claims.⁷⁵

74 See 18 U.S.C. § 2511(a) ; Tex. Pen. Code Ann. § 16.02 ; Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5.

75 See 18 U.S.C. § 2511(a) ; Tex. Pen. Code Ann. § 16.02 ; Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5.

Though the Robbins Parties allege that Taylor used the contents of Robbins's intercepted electronic communications in the Modification Proceeding, they do not allege that Taylor used these contents either (1) knowing or being reckless about whether the information was obtained through the interception of an electronic communication in violation of section 16.02(b) of the Penal Code or (2) knowing or having reason to know that the information was obtained through the interception of an electronic communication in violation of title 18, section 2511(1) of the United States Code.⁷⁶ Neither do the Robbins Parties allege facts from which these things reasonably may be inferred.

76 See 18 U.S.C. § 2511(d) ; Tex. Pen. Code Ann. § 16.02.

Even presuming the truth of all facts the Robbins Parties alleged and indulging all reasonable inferences in the light most favorable to the Robbins Parties, one could only conclude the pleadings fall short. The Robbins Parties did not allege facts showing criminal conduct by Taylor in violation of chapter 16 of the Penal Code and title 18, chapter 119 of the United States Code.⁷⁷ So, even if a criminal violation of either chapter 16 of the Penal Code or of title 18, chapter 119 of the United States Code would be "foreign to the duties of an attorney" and thus preclude application of attorney immunity, the Robbins Parties did not allege facts showing any such violation.⁷⁸

77 See Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5 ; Youngkin , 546 S.W.3d at 683 ; Gaia Environmental, Inc. v. Galbraith , 451 S.W.3d 398, 408–10 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ; Warwick Towers Council of Co-owners ex rel. St. Paul Fire & Marine Ins. Co. , 298 S.W.3d at 444.

78 See 18 U.S.C. § 2511(d) ; Tex. Pen. Code Ann. § 16.02 ; Fraser , 352 F.3d at 113–14 ; Talon Transaction Technologies, Inc. , 2013 WL 12172926, at *4–5 ; Bailey , 2008 WL 324156, at *4–5 ; Youngkin , 546 S.W.3d at 683 ; Gaia Environmental, Inc. , 451 S.W.3d at 408–10.

3. Alternative Application of the Cantey Hanger Analysis to Criminal Conduct

In the alternative, one may consider whether attorney immunity would apply even if the conduct the Robbins Parties allege showed a criminal violation by Taylor of either chapter 16 of the Penal Code or of title 18, chapter 119 of the United States Code. Though neither Cantey Hanger nor Youngkin involved alleged criminal conduct by the attorney, the Bethel court held that the Cantey Hanger analysis applies to allegedly criminal conduct by an attorney during the course of litigation.⁷⁹ As discussed above, Taylor's alleged conduct falls directly within the scope of Taylor's representation of Broome in the Modification Proceeding.⁸⁰ So, if the Complete Immunity Rule applies, then attorney immunity would bar the Texas Wiretap Claims and the Federal Wiretap Claims against Taylor, even if the claims are based on Taylor's alleged criminal conduct.⁸¹ If the Partial Immunity Rule applies, then attorney immunity would not bar these claims if Taylor's alleged criminal conduct was "foreign to the duties of an attorney."⁸² But, Taylor's alleged conduct does not fall within any of the examples enumerated in Cantey Hanger and Youngkin. ⁸³ Thus, under Youngkin , this alleged conduct is not "foreign to the duties of an attorney."⁸⁴ Under Bethel , because Taylor's allegedly criminal conduct involved the provision of legal services to her client in litigation, the attorney-immunity doctrine protects Taylor's conduct and prevents the Robbins Parties from seeking to hold Taylor civilly liable, even though the Robbins Parties allege that the conduct was criminal.⁸⁵ Instead of discussing and applying Bethel , the majority steps over this supreme court precedent to craft a categorical exception to attorney immunity for criminal conduct.⁸⁶ Today's decision conflicts with the supreme court's holding in Bethel as well as the binding judicial dicta in Cantey Hanger and Youngkin. ⁸⁷ Under these mandatory precedents, attorney immunity bars the Robbins Parties' claims against Taylor.⁸⁸

79 See Bethel , ––– S.W.3d at –––– – ––––, 2020 WL 938618, at *4–5 ; Youngkin , 546 S.W.3d at 681–83 ; Cantey Hanger, LLP , 467 S.W.3d at 481–85.

80 See Youngkin , 546 S.W.3d at 681–83 ; Cantey Hanger, LLP , 467 S.W.3d at 484–85 ; Highland Capital Management, LP , 2016 WL 16428, at *1–4, 6.

81 See Bethel , ––– S.W.3d at –––– – ––––, 2020 WL 938618, at *4–5 ; Cantey Hanger, LLP , 467 S.W.3d at 483–85 ; Troice , 921 F.3d at 506–07 ; Dorrell , 2017 WL 6764690, at *5–6 ; Highland Capital Management, LP , 2016 WL 164528, at 1–4, 6.

82 See Cantey Hanger, LLP , 467 S.W.3d at 485.

83 See Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 482–83.

84 See Youngkin , 546 S.W.3d at 682–83 ; Troice , 921 F.3d at 506–07 ; Dorrell , 2017 WL 6764690, at *5–6 ; Bethel , 581 S.W.3d at 311–12 ; Highland Capital Management, LP , 2016 WL 16428, at *1–4, 6.

85 See Bethel , ––– S.W.3d at –––– – ––––, 2020 WL 938618, at *4–5 ; Troice , 921 F.3d at 506–07 ; Dorrell , 2017 WL 6764690, at *5–6 ; Highland Capital Management, LP , 2016 WL 164528, at 1–4, 6.

86 See ante at –––– – ––––.

87 See Bethel , ––– S.W.3d at –––– – ––––, 2020 WL 938618, at *4–5 ; Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 481–85.

88 See Bethel , ––– S.W.3d at –––– – ––––, 2020 WL 938618, at *4–5 ; Youngkin , 546 S.W.3d at 682–83 ; Cantey Hanger, LLP , 467 S.W.3d at 481–85.

4. Alleged Preemption of Attorney Immunity by the Federal Act

The Robbins Parties also assert that the Federal Wiretap Act preempts the Texas common-law doctrine of attorney immunity. The Robbins Parties do not cite the record, nor do they cite any part of title 18, chapter 119 of the United States Code. Though the Robbins Parties cite three cases, none of them deal with attorney immunity. The Robbins Parties do not articulate the applicable preemption legal standard, nor do they provide an analysis applying a legal standard to the text of the federal statute and the Texas attorney-immunity doctrine.⁸⁹ Even under a liberal interpretation of the Robbins Parties' appellate briefing, they have not adequately briefed this point.⁹⁰

89 See GTE Mobilnet of S. Tex. v. Pascouet , 61 S.W.3d 599, 608–09 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (addressing various legal standards for determining whether a federal statute preempts state law).

90 See Tooker v. Alief Indep. Sch. Dist. , 522 S.W.3d 545, 556 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

5. The Robbins Parties' Request for Injunctive Relief

On appeal, the Robbins Parties assert that attorney immunity does not apply to their requests for injunctive relief, and they contend the trial court erred in granting summary judgment as to these requests. The Robbins Parties first raised this point in the trial court in their motion to reconsider the granting of Taylor's summary-judgment motion. Because they did not raise this issue until after the trial court granted Taylor's motion, the Robbins Parties did not timely raise this issue in the trial court, and they may not obtain a reversal of the trial court's summary judgment on this ground.⁹¹

91 See Wakefield v. Ayers , No. 01-14-00648-CV, 2016 WL 4536454, at *9-10 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, no pet.) (mem. op.).

Because all of the Robbins Parties' points under their first issue lack merit, this court should overrule the first issue.

II. SUMMARY JUDGMENT FOR PATHWAY

The Robbins Parties have not shown that the trial court erred in granting Pathway's summary-judgment motion.

Under their third issue, the Robbins Parties assert that the immunity afforded by the judicial-proceedings privilege does not apply to claims under the Texas wiretap statute or the Federal Wiretap Act. The Robbins Parties correctly note that Pathway does not cite any case in which a court applies this immunity to a claim under a wiretap statute. But, the Robbins Parties do not cite any case in which a court stated that this immunity does not apply to a claim under a wiretap statute. The First Court of Appeals has applied this immunity to claims for (l) libel, (2) slander, (3) intentional infliction of emotional distress, (4) denial of due process under the United States and Texas Constitutions, and (5) tortious interference with a contractual relationship.⁹² In doing so, the court noted that "[a]lthough most cases addressing the judicial communication privilege involve claims of libel or slander, Texas courts have consistently applied the privilege to claims arising out of communications made in the course of judicial proceedings, regardless of the label placed on the claim."⁹³ The Fourth Court of Appeals has stated that this immunity applies to "a defamation action, or any other action."⁹⁴ This court should conclude that this immunity applies to the Texas Wiretap Claims and the Federal Wiretap Claims against Pathway.⁹⁵

92 See Laub v. Pesikoff , 979 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

93 Id. at 690.

94 Hernandez v. Hayes , 931 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, writ denied).

95 See Laub , 979 S.W.2d at 689 ; Hernandez , 931 S.W.2d at 650.

The Robbins Parties also assert that the Federal Wiretap Act preempts the Texas common-law doctrine of immunity based on the judicial-proceedings privilege. The Robbins Parties provide three sentences, a citation to one case, and a reference to their statements regarding preemption under their first issue. The Robbins Parties do not cite to the record, nor do they cite any part of title 18, chapter 119 of the United States Code, to support their position. The four cases the Robbins Parties cite do not deal with attorney immunity. The Robbins Parties do not articulate the applicable preemption legal standard, nor do they provide an analysis applying a legal standard to the text of the federal statute and the Texas attorney-immunity doctrine.⁹⁶ Even under a liberal interpretation of the Robbins Parties' appellate briefing, they have not adequately briefed this point.⁹⁷

96 See GTE Mobilnet of S. Tex. , 61 S.W.3d at 608–09 (addressing various legal standards for determining whether a federal statute preempts state law).

97 See Tooker , 522 S.W.3d at 556.

The Robbins Parties assert that public policy favors making forensic experts liable under these circumstances. They provide no citations to the record or any legal authorities for this position. Nor do they articulate a legal standard or provide an analysis. Even under a liberal interpretation of the their appellate briefing, the Robbins Parties have not adequately briefed this point.⁹⁸

98 See id.

The Robbins Parties cite a 2011 case from the Supreme Court of the United Kingdom. They claim the Supreme Court of the United Kingdom abolished the immunity of expert witnesses from liability based on the judicial-proceedings privilege, and they assert that this common-law rule should be abolished in today's case. On matters of Texas civil law, this court must follow the Supreme Court of Texas rather than the Supreme Court of the United Kingdom.⁹⁹ This court is not in a position to abolish this common-law immunity. Because all of the Robbins Parties' points under their third issue lack merit, this court should overrule the third issue.

99 See Bird v. W.C.W. , 868 S.W.2d 767, 771 (Tex. 1994).

III. COSTS AND ATTORNEY'S FEES FOR DISCOVERY

The appellants have not shown that the trial court erred in requiring the Robbins Parties to pay Pathway the expense of producing items in response to their requests for production.

The Robbins Parties served requests for production on Pathway, to which Pathway objected. The Robbins Parties filed a motion to compel discovery, and Pathway moved for protection from this discovery. Pathway also asked the trial court to order the Robbins Parties to pay its reasonable costs and attorney's fees in responding to the requests for production. After a hearing, the trial court signed an order in which it granted the Robbins Parties' motion to compel discovery, denied Pathway's motion for protection, and granted Pathway's request that the Robbins Parties pay reasonable costs and attorney's fees associated with producing the requested items. The trial court ordered that, upon the Robbins Parties' payment of Pathway's reasonable costs and attorney's fees associated with producing the requested items, Pathway should produce the items sought in the Robbins Parties' requests for production.

The parties disputed the amount the Robbins Parties had to pay, so the Robbins Parties filed a motion to determine the reasonable cost of production. After a hearing, the trial court signed an order finding that "that the reasonable cost of production for the work done as a result of [the Robbins Parties'] first request for production is $9,374.50 and that [the Robbins Parties] are required to pay the above sum to Pathway before the production of documents." The Robbins Parties paid Pathway this amount and received the documents and data requested.

In their second issue the Robbins Parties assert that the trial court abused its discretion by requiring them to pay Pathway $9,374.50 before Pathway produced any items in response to the Robbins Parties requests for production. Texas Rule of Civil Procedure 196.6 provides that "unless otherwise ordered by the court for good cause, the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party."¹⁰⁰

100 Tex. R. Civ. P. 196.6.

The Robbins Parties point out that part of the $9,374.50 is for payment of attorney's fees for Pathway's counsel. The Robbins Parties assert that the trial court may not award attorney's fees absent a contract or statute authorizing the recovery of fees, and they claim that neither Rule 196.6 nor any contract or statute provides for Pathway's recovery of attorney's fees in this context. Crucially, the Robbins Parties did not raise this complaint in the trial court. Having failed to preserve the complaint in the trial court, they do not get appellate review in this court.

The supreme court has recognized the strong policy supporting Texas's longstanding preservation-of-error requirement.¹⁰¹ A timely and specific complaint alerts the trial court and the adversary to the purported error, giving both a chance to remedy the problem and thus avert the need to raise the issue on appeal.¹⁰² For these and other reasons, subject to a narrow exception, the law commands Texas appellate courts in civil appeals to step away from reviewing non-jurisdictional complaints raised for the first time on appeal.¹⁰³

101 See Mansions in the Forest, L.P. v. Montgomery County , 365 S.W.3d 314, 317 (Tex. 2012) (per curiam).

102 See id.

103 See id.

The Robbins Parties' appellate complaint as to Pathway's alleged inability to recover attorney's fees as a matter of law does not fall within the tight constraints of the fundamental-error doctrine.¹⁰⁴ So, the Robbins Parties had to preserve this complaint or forfeit appellate review.¹⁰⁵ They did not raise this complaint in the trial court.¹⁰⁶ Nor have they offered this court any reason why they should be excused from the preservation-of-error requirement and allowed to present these issues for the first time on appeal. The majority offers no explanation either.

104 See In re B.L.D. , 113 S.W.3d 340, 350–52 (Tex. 2003).

105 See In re L.M.I. , 119 S.W.3d 707, 711 (Tex. 2003).

106 See Laguan v. U.S. Bank Trust, N.A. , No. 14-14-00577-CV, 2016 WL 750172, at *3–4 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.).

Inasmuch as the Robbins Parties failed to preserve error, this court cannot reverse the trial court's order based on their complaint that the trial court erred in ordering them to pay Pathway for its attorney's fees because neither Rule 196.6 nor any contract or statute provides for the recovery of Pathway's attorney's fees in this context.¹⁰⁷ In doing just that, this court treads on mountains of precedent.

107 See Tex. R. App. P. 33.1(a) ; In re L.M.I. , 119 S.W.3d at 711 ; In re B.L.D. , 113 S.W.3d at 350–52 ; Laguan , 2016 WL 750172, at *3–4.

The Robbins Parties also assert in the alternative that the trial court abused its discretion in implicitly finding good cause under Rule 196.6 to order them (the requesting parties) to pay the expense of producing items responsive to the production requests rather than Pathway, the responding party.¹⁰⁸ A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to guiding rules and principles.¹⁰⁹ The Robbins Parties have not shown that the trial court abused its discretion by implicitly finding good cause to order the Robbins Parties — rather than Pathway — to pay the expense of producing items responsive to the production requests.¹¹⁰ The Robbins Parties have not shown that the trial court erred in issuing the discovery orders requiring the Robbins Parties to pay Pathway the reasonable costs of responding to their requests for production.

108 See Tex. R. Civ. P. 196.6.

109 Downer v. Aquamarine Operators , 701 S.W.2d 238, 241–42 (Tex. 1985).

110 See Tex. R. Civ. P. 196.6.

The majority, speaking in conclusory terms, says that the record does not demonstrate that Pathway showed good cause for the trial court to order the Robbins Parties — rather than Pathway — to pay the expense of producing items responsive to the production requests. The majority does not address the evidence Pathway submitted. Nor does the majority address the trial court's statements at the two hearings. Before reversing a discretionary discovery ruling on appeal, this court should explain why the record shows that the trial court acted in an unreasonable or arbitrary manner, or without reference to guiding rules and principles.¹¹¹

111 See Downer , 701 S.W.2d at 241–42.
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IV. CONCLUSION

The Robbins Parties have not shown that the trial court erred in granting Taylor's summary-judgment motion or in granting Pathway's summary-judgment motion. Nor have the Robbins Parties shown that the trial court abused its discretion by implicitly finding good cause to order them, rather than Pathway, to pay the expense of producing items responsive to the production requests. This court should affirm the trial court's judgment.

( Poissant, J., majority).