Thomas Callaghan.........

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Page 1
NO. 04-0914
_____________________________________________
IN THE
SUPREME COURT OF TEXAS
____________________________________________
IN RE: CHRISTUS SPOHN HOSPITAL KLEBERG, CHRISTUS SPOHN
HEALTH SYSTEM CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL
KLEBERG
____________________________________________
On Petition for Writ of Mandamus from the 105th Judicial District Court
Kleberg County, Texas
Cause No. 03-053-D
____________________________________________
REAL PARTIES IN INTEREST’S BRIEF ON THE MERITS
____________________________________________
Todd Taylor, TBA #00785087
Mike Johanson, TBA#10670400
Chris M. Volf, TBA #24033299
J
OHANSON
& F
AIRLESS
, L.L.P.
1456 First Colony Boulevard
Sugar Land, TX 77479
281-313-5000 Main/281-340-5100 Fax
COUNSEL FOR REAL PARTIES IN INTEREST
Page 2
ii
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons have an
interest in the outcome of this case. These representations are made in order that the Justices
of this Court may evaluate any possible disqualifications or necessary recusals.
1.
Christus Spohn Hospital Kleberg,
Christus Spohn Health System Corporation d/b/a
Christus Spohn Hospital Kleberg . . . . . . . . . . . . . . . . . . . . Relators/Defendants
Counsel for Relators
F. EDWARD BARKER, TBA#01741000
STEPHEN J. CHAPMAN, TBA#24001870
B
ARKER
, L
EON
, F
ANCHER
& M
ATTYS
, L.L.P.
555 North Carancahua, Tower II-Suite 1200
Corpus Christi, Texas 78478
(361)-881-9217; Fax (361)-882-9437
DEBORAH R. SUNDERMANN, TBA#19511900
711 N. Carancahua, Suite 512
Corpus Christi, Texas 78475
(361)-882-0101; Fax (361)-882-0111
2.
Dr. Benjamin Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant
Counsel for Defendant
DOUGLAS M. KENNEDY, TBA#11284600
SIMON B. PURNELL, TBA#24003889
B
RIN
& B
RIN
, P.C.
1202 Third Street
Corpus Christi, Texas 78404
(361)-881-9643; Fax (361)-883-0506
Page 3
iii
3.
The Honorable J. Manuel Banales . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
THE HONORABLE J. MANUEL BANALES
c/o Ms. Martha Soliz, District Clerk
105th Judicial District Court of Kleberg County, Texas
Kleberg County Courthouse
P.O. Box 132
Kingsville, Texas 78364
(361)-595-8561; Fax (361)-595-8525
4.
Mona L. Palmer, Individually, and as Surviving Parent,
and on behalf of the Estate of Brandi Lee Palmer, Deceased
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Real Parties In Interest/Plaintiffs
Counsel for Real Parties In Interest
TODD TAYLOR, TBA #00785087
MIKE JOHANSON, TBA #10670400
CHRIS M. VOLF, TBA #24033299
J
OHANSON
& F
AIRLESS
, L.L.P.
1456 First Colony Blvd.
Sugar Land, Texas 77479
(281)-313-5000; Fax (281)-340-5100
Page 4
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.
THE TRIAL COURT’S DECISION THAT RELATORS WAIVED
ANY AND ALL PRIVILEGES TO THE DOCUMENTS IN
QUESTION IS CORRECT UNDER ALL RELEVANT
AUTHORITIES AND PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.
The Plain Language Of The Texas Rules Of Civil Procedure
Dictates That Relators Waived Any And All Privileges
Pertaining To The Documents In Question When The
Documents Were Provided To, Reviewed By, Or Prepared By
Or For Relators’ Testifying Expert . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B.
The Trial Court’s Decision Is Consistent With The Established
Precedents Of Other Jurisdictions Faced With Similar
Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C.
The Trial Court’s Decision Is Consistent With The Majority Of
Authorities Analyzing This Issue Under The Federal Rules of
Civil Procedure And Is Supported By Strong Public Policy
Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Page 5
v
D.
Any Objections Pertaining To The Documents In Question,
Which Were Provided To, Reviewed By, Or Prepared By Or For
Relators’ Testifying Expert, Should Be Limited To Objections
Regarding Admissibility At Trial, And Such Objections Are
Premature And Not Before This Court . . . . . . . . . . . . . . . . . . . . . . 30
E.
Relators’ Reliance Upon Rule 193.3(d) Of The Texas Rules Of
Civil Is Misplaced Under The Facts And Circumstances Of This
Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
F.
Relators Failed To Satisfy Their Burden To Avoid Discovery Of
The Alleged Confidential And Privileged Documents. . . . . . . . . . 33
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
APPENDICES:
Appendix “1”:
State ex rel. Tracy v. Dandurand,
30 S.W.3d 831 (Mo. banc 2000) . . . . . . . . . . . . . . . . 1
Appendix “2”:
Gall v. Jamison,
44 P.3d 233 (Col. 2002) . . . . . . . . . . . . . . . . . . . . . . . 2
Appendix “3”:
T
EX
. R. C
IV
. P. 192.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Appendix “4”:
T
EX
. R. C
IV
. P. 192.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Page 6
vi
INDEX OF AUTHORITIES
Texas Supreme Court Cases:
Page(s)
Axelson, Inc. v. McIlhany,
798 S.W.2d 550 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Jordan v. Fourth Court of Appeals,
701 S.W.2d 644 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Lindsey v. O’Neill,
689 S.W.2d 400 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State v. Lowry,
802 S.W.2d 669 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18, 33
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Weisel Enterprises, Inc. v. Curry,
718 S.W.2d 56 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Texas Courts of Appeal Cases:
Aetna Cas. & Sur. Co. v. Blackmon,
810 S.W.2d 438 (Tex. App.–Corpus Christi 1991, orig. proceeding) . . . 11, 34, 35
In re Bell Helicopter Textron, Inc.,
87 S.W.3d 139 (Tex. App.–Forth Worth 2002, orig. proceeding) . . . . . . . . . . . . 29
In re Family Hospice, Ltd.,
62 S.W.3d 313 (Tex. App.–El Paso 2001, orig. proceeding) . . . . . . . . . . . 9, 10, 12
Page 7
vii
INDEX OF AUTHORITIES (Cont.)
Page(s)
Texas Rules of Civil Procedure:
T
EX
. R. C
IV
. P. 166b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
T
EX
. R. C
IV
. P. 192.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
T
EX
. R. C
IV
. P. 192.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
T
EX
. R. C
IV
. P. 193.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
T
EX
. R. C
IV
. P. 194.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 30, 32
T
EX
. R. C
IV
. P. 194.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
T
EX
. R. C
IV
. P. 203.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30
Other State Cases:
Gall v. Jamison,
44 P.3d 233 (Col. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
State ex rel. Am. Econ. Ins. Co. v. Crawford,
75 S.W.3d 244 (Mo. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
State ex rel. Tracy v. Dandurand,
30 S.W.3d 831 (Mo. banc 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Stearrett v. Newcomb,
521 A.2d 636 (Del. Super. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Page 8
viii
INDEX OF AUTHORITIES (Cont.)
Page(s)
Federal Cases:
Boring v. Keller,
97 F.R.D. 404 (D. Colo. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Davis v. Alaska,
415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Rules of Civil Procedure:
F
ED
. R. C
IV
. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 27
Secondary Authority:
C
HARLES
P
ANATI
,
Words To Live By 28 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
S
TEPHEN
D. E
ASTON
,
A
MMUNITION FOR THE
S
HOOT
-O
UT WITH THE
H
IRED
G
UN
’
S
H
IRED
G
UN
: A P
ROPOSAL
FOR
F
ULL
E
XPERT
W
ITNESS
D
ISCLOSURE
,
32 Ariz. St. L. J. 465 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Page 9
ix
STATEMENT OF THE CASE
Nature of the Case:
This is a wrongful death and survival lawsuit that was brought by Real Parties In
Interest against Dr. Benjamin Moore and Relators following the untimely,
unnecessary, and tragic death of a 17 year old child (i.e., Brandi Lee Palmer).
By their lawsuit, Real Parties In Interest assert various claims for negligence and
gross negligence in connection with the medical and nursing treatment, or lack
thereof, surrounding Brandi Lee Palmer.
Trial Court:
The Honorable J. Manuel Banales, 105th Judicial District Court of Kleberg County,
Texas.
Trial Court’s Disposition:
On August 31, 2004, the Honorable J. Manuel Banales held that Relators waived any
and all privileges that might have applied to certain documents that were provided to,
reviewed by, or prepared by or for one of Relators’ testifying experts in anticipation
of the expert’s deposition testimony and/or in preparation of the expert’s report.
As such, the Honorable J. Manuel Banales OVERRULED Relators’ Objection and
Assertion of Privilege Pursuant to TRCP 193.3(d). (Relators’ Record [“R.R.”] at 0.)
Parties in the Court of Appeals:
Same as here.
Court of Appeals:
Court of Appeals for the Thirteenth District of Texas, Corpus Christi; Chief Justice
Valdez, joined by Justice Rodriquez and Justice Wittig, authored an unpublished, per
curiam memorandum opinion covering the mandamus. (R.R. at S.)
Court of Appeals’ Disposition:
Page 10
x
DENIED. On September 27, 2004, the Court of Appeals for the Thirteenth District
of Texas denied the Verified Petition for Writ of Mandamus and lifted the stay
associated with same.
ISSUE PRESENTED
I.
In Texas, a party is obligated to disclose and/or produce all documents, reports, or
tangible items “provided to, reviewed by, or prepared by or for the expert in
anticipation of a testifying expert’s testimony.” The trial court held that Relators
waived any and all privileges that might have applied to documents that were
provided to, reviewed by, or prepared by or for one of Relators’ testifying experts.
Did the trial court correctly determine that Relators waived their claims, if any, of
attorney-client, work product, anticipation of litigation, and/or other privileges when
certain documents were provided to, reviewed by, or prepared by or for one of
Relators’ testifying experts in anticipation of the expert’s deposition testimony and/or
in preparation of the expert’s report?
Page 11
-1-
STATEMENT OF FACTS
This is a wrongful death and survival lawsuit that was brought by Real Parties In
Interest against Dr. Benjamin Moore and Relators following the untimely, unnecessary, and
tragic death of a 17 year old child (i.e., Brandi Lee Palmer [“Brandi”]). By their lawsuit,
Real Parties In Interest assert various claims for negligence and gross negligence in
connection with the medical and nursing treatment, or lack thereof, surrounding Brandi.
(R.R. at A, B.) Specifically, Real Parties In Interest contend that Dr. Benjamin Moore and
Relators deviated from the appropriate standards of care in their treatment, or lack thereof,
of Brandi, which lead, ultimately, to her tragic death, and caused Real Parties In Interest to
suffer life’s greatest loss; the loss of a child. (Id.)
After Dr. Benjamin Moore and Relators were served and appeared in this case, and,
over the course of the next year and a half, the parties conducted detailed discovery,
including, but not limited to, numerous depositions regarding both liability and damages.
Then, on August 16, 2004, Real Parties In Interest noticed the deposition of Kendra Menzies,
RN, MS, CCRN, CNRN (“Nurse Menzies”) (i.e., one of Relators’ testifying experts), and,
along with the notice of deposition, served a subpoena duces tecum on Relators. (R.R. at F.)
In the subpoena duces tecum, Real Parties In Interest requested production of, among other
things, “[a]ll letters, correspondence, records, documents, reports, investigative material,
Page 12
-2-
depositions, pleadings, photographs or any other form of written document furnished to
[Nurse Menzies] in connection with [her] consultation in this lawsuit.” (Id.) Additionally,
Real Parties In Interest requested production of “[a]ll letters, correspondence, records,
documents, reports, investigative material, depositions, pleadings, photographs or any other
form of written document reviewed by[Nurse Menzies] in connection with [her]consultation
in this lawsuit.” (Id.) (emphasis added). Further, Real Parties In Interest requested
production of “[a]ll records and/or documents which form a basis, either in whole or in part,
of any opinions, impressions, conclusions or findings that [Nurse Menzies] [has] made in
connection with [her] consultation herein.” (Id.) (emphasis added).
Prior to the beginning of Nurse Menzies’ deposition, Relators produced various
documents responsive to the subpoena duces tecum without objection or generation of a
privilege log. (R.R. at W.) To the surprise and disappointment of Real Parties In Interest,
and, despite previous completion of extensive discovery, numerous documents, including,
but not limited to, (1) Relators’ policies and procedures regarding the treatment of patients
with symptoms similar to those of Brandi, (2) Relators’ triage policies and guidelines for its
nurses, (3) personnel files of several key witnesses, including, but not limited to, Relators’
treating nurse, Nurse May Alonzo, (4) investigative reports, and (5) correspondence, which
included the identities of several other, previously unidentified persons with knowledge of
relevant facts, surfaced, for the first time, at the deposition of Nurse Menzies. (Id.) In fact,
at least one of the documents reveals that Relators intentionally withheld from Real Parties
Page 13
-3-
In Interest important documents so that Real Parties In Interest would not have the benefit
of same during key depositions surrounding this case. (Id.) (document indicating that
Relators were being “lax” in producing certain documents to counsel for Real Parties In
Interest before key depositions). Ironically, with the exception that Relators are now
claiming privileges to some of the documents that were produced, Relators offer no excuse
for their offensive conduct; indeed, there is no excuse. Nevertheless, in an effort to “snatch
back” the documents, Relators filed an Objection and Assertion of Privilege Pursuant to
TRCP 193.3(d). (R.R. at I.) Thereafter, Real Parties In Interest filed their Response to
Relators’ Objection and Assertion of Privilege Pursuant to TRCP 193.3(d). (R.R. at N.)
On Tuesday, August 31, 2004, at the hearing related to the above-referenced issues,
the Honorable J. Manuel Banales held that Relators waived any and all privileges that might
have applied to certain documents that were provided to, reviewed by, or prepared by or for
Relators’ testifying expert in anticipation of the expert’s deposition testimony and/or in
preparation of the expert’s report. (R.R. at O.) As such, with respect to those certain
documents, the Honorable J. Manuel Banales OVERRULED Relators’ Objection and
Assertion of Privilege Pursuant to TRCP 193.3(d). (Id.)
Thereafter, Relators filed a Verified Petition for Writ of Mandamus with Thirteenth
Court of Appeals in Corpus Christi, Texas. (R.R. at P.) On September 27, 2004, after Real
Parties In Interest filed their Response to the Verified Petition for Writ of Mandamus,
Chief Justice Valdez, joined by Justice Rodriquez and Justice Wittig, authored an
Page 14
-4-
unpublished, per curiam memorandum opinion, wherebyRelators’ Verified Petition for Writ
of Mandamus was DENIED and the stay associated with same was lifted. This Petition for
Writ of Mandamus followed.
SUMMARY OF THE ARGUMENT
Discovery is the “linchpin of the search for the truth, as it makes a ‘trial less of a game
of blind man’s bluff and more a fair contest with the issues and facts disclosed to the fullest
practicable extent.’” State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). Importantly, the
documents provided to or reviewed by Relators’ testifying expert in this case contain
information and facts that fly directly in the face of that expert’s opinions, as well as
Relators’ arguments and defenses throughout this lawsuit. Perhaps not surprisingly, and,
despite a fact issue as to whether or not Relators’ expert considered such documents, Relators
are attempting now to thwart the search for the truth by hiding or “snap[ping] back” the
documents in question. Simply put, they are attempting to “unring the bell.” Recognizing
the problems and injustice surrounding Relators’ arguments, the trial court correctly
determined that Relators waived any and all privileges that might have applied to documents
that were provided to, reviewed by, or prepared by or for Relators’ testifying expert.
In determining that Relators waived any and all privileges that might have applied to
documents that were provided to, reviewed by, or prepared by or for one of Relators’
Page 15
-5-
testifying experts, the trial court followed the plain language of the Texas Rules of Civil
Procedure. After all, it is well settled, under Rule 192.3(e) of the Texas Rules of Civil
Procedure, that party is obligated to disclose, among other things, the facts known by an
expert that relate to or form the basis of the expert’s opinion, an expert’s mental impressions
and opinions in connection with the case and any methods used to derive those impressions
and opinions, and all documents, reports, or tangible items “provided to, reviewed by, or
prepared by or for the expert in anticipation of a testifying expert’s testimony.” T
EX
. R. C
IV
.
P. 192.3(e)(3), (4), (6) (emphasis added). Importantly, “[e]ven if made or prepared in
anticipation of litigation or for trial, the following is not work product protected from
discovery: (1) information discoverable under Rule 192.3 concerning experts . . . .”
T
EX
. R. C
IV
. P. 192.5(c)(1) (emphasis added).
Moreover, a careful review of all relevant authorities and principles reveals that
Relators’ arguments regarding the so-called “snap back provision” of the Texas Rules of
Civil Procedure are too narrow. In fact, contrary to Relators’ arguments, the trial court’s
decision is consistent with the established precedents of other jurisdictions faced with similar
controversies. Further, the trial court’s decision is consistent with the majority of courts that
have analyzed this issue (i.e., discovery of experts) under the Federal Rules of Civil
Procedure. Perhaps equally as important, the trial court’s decision is supported by strong
public policy considerations, including efficiency, fairness, and the truth seeking process.
Page 16
-6-
Because all relevant authorities and principles expressly provide that Relators waived
any and all privileges that might have otherwise applied to the documents in question, any
objections pertaining to the documents in question should be limited to objections regarding
admissibility at trial, and such objections are premature and not before this Court.
Moreover, because the so-called “snap back” provision of the Texas Rules of CivilProcedure
does not apply to information discoverable under Rule 192.3 of the Texas Rules of Civil
Procedure concerning experts, the trial court’s decision is correct. To hold otherwise would
necessitate a strained, and, perhaps more importantly, incorrect reading of the Texas Rules
of Civil Procedure and the interpretive case law on this issue.
Finally, even assuming,for arguments sake, that the trial court misapplied the relevant
law concerning discovery of experts, the evidence reveals that Relators failed to satisfy their
burden to avoid discoveryof the documents in question. Stated differently, although Relators
referred the trial court to certain documents or evidence to support their contention that none
of the documents in question were “relied” upon by their expert, Relators did so in a
conclusory manner and did not segregate the documents as to the various subjects which
would or would not form the basis of their expert’s opinions. To that end, Relators made it
virtually impossible and/or at least impracticable for the trial court to determine whether or
not Relators had satisfied their burden of proving no waiver.
ARGUMENT
Page 17
-7-
I.
THE TRIAL COURT’S DECISION THAT RELATORS WAIVED ANY AND
ALL PRIVILEGES TO THE DOCUMENTS IN QUESTION IS CORRECT
UNDER ALL RELEVANT AUTHORITIES AND PRINCIPLES.
The trial court correctly determined that Relators waived any and all privileges that
might have otherwise applied to the documents that were provided to, reviewed by, or
prepared by or for one of Relators’ testifying experts (i.e., Nurse Menzies) in anticipation of
the expert’s deposition testimony and/or in preparation of the expert’s report. As aptly noted
by our first President, “[t]ruth will ultimately prevail where there is pains to bring it to light.”
C
HARLES
P
ANATI
, Words To Live By 28 (1999) (quoting G
EORGE
W
ASHINGTON
). In one of
many efforts to ensure that the truth regarding their acts and/or omissions (an issue best left
in the hands of a jury) never sees the light of day, Relators argue, in their Petition for Writ
of Mandamus, that certain documents were inadvertently produced to Nurse Menzies
(i.e., one of Relators’ testifying experts), and, subsequently, inadvertently produced to Real
Parties In Interest at the deposition of Nurse Menzies. (Petition for Writ of Mandamus at 2-
13.) As such, pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, Relators ask
this Court to rule that such documents are privileged and/or to allow Relators to “snatch
back” such documents. (Id. at 8-13.) Although Relators (and/or their counsel) claim now
that they did not have an opportunity to review the documents in question prior to providing
their testifying expert with same, the deposition testimony of their testifying expert reveals
that Relators met with Nurse Menzies for several hours before her deposition (i.e., both by
phone and on the way to the deposition). (Id.) Regardless, Relators argue that waiver
Page 18
-8-
extends only to those documents or material “that the expert actually relied [upon] in arriving
at mental impressions or opinions.” (Id. at 11.) Stated differently, Relators contend that the
question is not whether their expert “saw,” or glanced at the documents in question,
but “[t]he question is whether she used them and relied upon them in arriving at her
opinions.” (Id. at 14.)
In applying all relevant authorities and principles to the facts and circumstances of this
case, it will become obvious that Relators’ arguments and authorities are misplaced.
To be sure, in reaching its decision, the trial court followed the plain language of the Texas
Rules of Civil Procedure. Further, the trial court’s ruling is consistent with the established
precedents of other jurisdictions faced with similar controversies. Moreover, the trial court’s
decision is consistent with the majority of courts that have analyzed this issue under the
Federal Rules of Civil Procedure, and the trial court’s decision is supported by strong public
policy considerations. To that end, any objections pertaining to the documents in question
should be limited to objections regarding admissibility at trial, and such objections are
premature and not before this Court. Perhaps equally as important, contrary to Relators’
arguments, the “snap back” provision of the Texas Rules of Civil Procedure does not apply
to information discoverable under Rule 192.3 of the Texas Rules of Civil Procedure
concerning experts. To hold otherwise would necessitate a strained, and, perhaps more
importantly, incorrect reading of the Texas Rules of Civil Procedure and the interpretive case
law on this issue. Finally, even assuming, for arguments sake, that the trial court misapplied
Page 19
-9-
the relevant law concerning discovery of experts, the evidence reveals that Relators failed
to satisfy their burden to avoid discovery of the documents in question.
A.
The Plain Language Of The Texas Rules Of Civil Procedure
Dictates That Relators Waived Any And All Privileges Pertaining
To The Documents In Question When The Documents Were
Provided To, Reviewed By, Or Prepared By Or For Relators’
Testifying Expert.
Because the documents in question were provided to, reviewed by, or prepared by or
for Relators’ testifying expert in anticipation of her deposition testimony and/or in
preparation of her expert report, Relators waived any and all privileges that might have
otherwise applied to such documents. It is well settled, under Rule 192.3(e) of the Texas
Rules of Civil Procedure, that a party is obligated to disclose, among other things, the facts
known by an expert that relate to or form the basis of the expert’s opinion, an expert’s mental
impressions and opinions in connection with the case and any methods used to derive those
impressions and opinions, and all documents, reports, or tangible items “provided to,
reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s
testimony.” T
EX
. R. C
IV
. P. 192.3(e)(3), (4), (6) (emphasis added); see also T
EX
. R. C
IV
. P.
194.2(f)(4)(A). Importantly, “[e]ven if made or prepared in anticipation of litigation or for
trial, the following is not work product protected from discovery: (1) information
discoverable under Rule 192.3 concerning experts . . . .” T
EX
. R. C
IV
. P. 192.5(c)(1)
(emphasis added). Further, a response to request for disclosures made in accordance with
Rule 194 of the Texas Rules of Civil Procedure may not include an assertion that the
Page 20
-10-
information or material to be disclosed to testifying experts constitutes work product.
T
EX
. R. C
IV
. P. 194.5 (emphasis added). In analyzing the relationship between the work
product privileges (and other privileges) afforded trial preparation materials and the rule
concerning the discoverability of expert information, this Court is need look no further than
the plain language of the current Texas Rules of Civil Procedure.
An instructive case is In re Family Hospice, Ltd., 62 S.W.3d 313 (Tex. App.–El Paso
2001, orig. proceeding). In that case, during the course of the wrongful death litigation
arising out of the negligent care of a nursing home patient, the plaintiffs designated a
registered nurse as their testifying expert. Id. at 315. After the plaintiffs noticed their
testifying expert’s deposition, the defendants issued a cross-notice of deposition with a
subpoena duces tecum. Id. During the testifying expert’s deposition, the defendants learned
that documents that were responsive to their request for disclosure were being withheld. Id.
The plaintiffs argued that the documents in question were privileged. Id. The defendants
filed a motion to compel requesting that the trial court order the plaintiffs to produce the
alleged privileged documents. Id. After a hearing, the trial court held that some of the
documents were protected by, among other things, the work product privilege. Id.
On writ of mandamus, the defendants argued that all of the documents were
discoverable and/or that the plaintiffs had waived their right to assert an objection to the
subpoena duces tecum. Id. In holding that the trial court clearly abused its discretion by
refusing to grant the defendants’ motion to compel in its entirety, the In re Family Hospice,
Page 21
1
To support their position, Relators direct this Court’s attention to Aetna Cas. & Sur.
Co. v. Blackmon, 810 S.W.2d 438 (Tex. App.–Corpus Christi 1991, orig. proceeding).
Blackmon was decided, however, under the old Texas Rules of Civil Procedure.
While Relators attempt to minimize or ignore the differences between the old Rules and the
current Rules, there are distinct and important differences between the two. In fact, it
appears that Relators went to great lengths to avoid any references to and/or to ignore the
“provided to” language in the current Rules, and, instead, chose to focus on the “relied upon”
theory addressed under the old Rules. Regardless, the fact remains that such language is not
a distinction without a difference.
For example, under the old Texas Rules of Civil Procedure, Rule 166b(2)(e)(2)
provided, in pertinent part, that “[a] party may also obtain discovery of documents . . .
prepared by an expert or for an expert in anticipation of the expert’s trial and deposition
-11-
Ltd. court relied upon Rule 192.3(e) of the Texas Rules of Civil Procedure. Id. at 315
S
16.
Specifically, the In re Family Hospice, Ltd. court noted that “[b]ecause the documents in
question are the product and/or documentation of the mental impressions of a testifying
expert and because the Texas Rules of Civil Procedure provide that any information
regarding a testifying expert’s mental impressions or opinions are discoverable regardless
of when and how the information was acquired, we hold that the ruling of the trial court
constitutes a clear abuse of discretion.” Id. at 316 (emphasis added). While it is true, as
alluded to by Relators, that the In re Family Hospice, Ltd. court based its holding, at least in
part, on the fact that the documents in question were the product of the mental impressions
of the plaintiffs’ testifying expert, the precise issue before this Court was not raised.
Stated differently, the question of whether or not documents “provided to” an expert, and,
at a minimum, considered by the expert for the purpose of determining whether or not to rely
upon same in forming his opinions are discoverable was left unanswered .
1
Page 22
testimony . . . .” T
EX
. R. C
IV
. P. 166b(2)(e)(2). Importantly, unlike Rule 192.3(e)(6) of the
current Texas Rules of Civil Procedure, Rule 166(2)(e)(2) did not speak to documents
“provided to” or “reviewed by” an expert in anticipation of the expert’s testimony. Id.
It necessarily follows that the current version of the Texas Rules of Civil Procedure is much
broader than the old version when it comes to discovery relating to experts.
-12-
In this case, although Relators contend that the documents in question included
privileged documents, the plain language of the current Texas Rules of Civil Procedure
obligated Relators to produce all such documents because it is undisputed that such
documents were “provided to, reviewed by, or prepared by or for [Nurse Menzies] in
anticipation of [her] testimony.” T
EX
. R. C
IV
. P. 192.3(e)(6) (emphasis added). Perhaps
more importantly, Relators are precluded, by the express language of the current Texas Rules
of Civil Procedure, from asserting that such documents are protected work product
(or asserting other privileges) “[e]ven if [the documents were] made or prepared in
anticipation of litigation or for trial . . . .” T
EX
. R. C
IV
. P. 192.5(c)(1) (information
discoverable under Rule 192.3 concerning experts is not protected from discovery). It cannot
be reasonably disputed that the documents in question were “provided to” and/or that a fact
issue exists as to whether or not the documents were “reviewed by” Nurse Menzies in
anticipation of her deposition testimony and/or in preparation of her expert report. (R.R. at
I-4; see also id. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.)
Under the express, plain language of the Texas Rules of Civil Procedure, that alone is
sufficient to constitute waiver on the part of Relators. T
EX
. R. C
IV
. P. 192.3(e)(6),
192.5(c)(1); see also In re Family Hospice, Ltd., 62 S.W.3d at 316.
Page 23
2
Again, the issue of whether or not Relators’ expert considered, used, etc. the
documents in question is heavily disputed and contradicted by the evidence. In fact, the trial
court’s decision was “based not only on the delivery of the material to the expert nurse, but
also . . . [because] [i]t is unclear that she did not see certain specified documents.” (R.R. at
O at p. 68, l. 22–p. 69, l. 4.) To that end, there is an “appreciable difference” between the
hypothetical arguments advanced by Relators and the facts of this case.
-13-
Again, contrary to Relators’ arguments and the Affidavit of Nurse Menzies, whereby
theycontend that Nurse Menzies did not form her opinions and/or her report from the alleged
privileged documents, Nurse Menzies, admitted in her deposition, that she reviewed all of
the documents that she brought with her to her deposition, and took at a look at all of the
materials in the box provided to her by Relators. (R.R. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79,
l. 24, p. 87, l. 16–p. 89, l. 4.) Conveniently, towards the end of her deposition, and, now,
Nurse Menzies contends that the alleged privileged documents were not reviewed and/or
considered by her for purposes of her testimony and/or expert report . Because Nurse
2
Menzies’ deposition testimony and Nurse Menzies’ Affidavit contain, at the very least,
contradicting statements, a fact issue exists with respect to same. Further, as set forth in
more detail below, the fact that Nurse Menzies allegedly did not “rely upon” such documents
in forming her opinions is not dispositive of the issue at hand.
One of the most insightful analyses, which addressed the inherent problems and
chilling effects of Relators’ narrow interpretation of the relevant law was set forth, in detail,
by S
TEPHEN
D. E
ASTON
, A
MMUNITION FOR THE
S
HOOT
-O
UT WITH THE
H
IRED
G
UN
’
S
H
IRED
G
UN
: A P
ROPOSAL FOR
F
ULL
E
XPERT
W
ITNESS
D
ISCLOSURE
, 32 Ariz. St. L. J. 465, 556
S
69
Page 24
-14-
(2000). In that article, in discussing an expert’s ability to hide information under the “relied
upon” doctrine, it was noted that “[a]doption of the [full disclosure] proposal would end the
artificial, information-hiding, and perniciously malleable notion of requiring disclosure only
of information that an expert witness identifies as information that she relied upon in forming
opinions.” Id. at 556. In an analysis with striking similarity to the analysis in Tracy
(i.e., addressed below), the article’s author added, in pertinent part, as follows:
[E]ven for the most honest of experts, a declaration that she did not “rely
upon” a certain piece of information is not one that should be accepted at face
value. After all, how can any human being say that she considered and is
aware of a certain piece of information, but that piece of information plays no
part whatsoever in her analysis of the set of facts that included that piece of
information? Any trial attorney who has sat through a “limiting” instruction
telling the jury to ignore a certain piece of information (on either one, some,
or all issues) knows that one can never completely “unring” a bell and expect
jurors to totally disregard this evidence. . . . One suspects that the expert who
lists the information that she relied upon or, in another phrase, information that
is the basis for her opinion is not actually saying that she is not relying to any
extent upon other information. Instead, what she probably means is “I am
prepared to try to defend my opinion without this data” or “I am ignoring this
data, because it runs counter to my conclusion.” In either event, the opposing
attorney’s interest in the data is not eliminated (or, usually, diminished) and
may, in some instances, be increased by the fact that the expert is trying to
pretend that the data does not exist.
Id. at 557
S
58. It logically follows that the survival of our adversary system depends, in great
part, “upon cross-examination to expose problems with witnesses and the testimony they
present, so that jurors will be enlightened in their search for the truth.” Id. at 569.
In the end, because all of the documents in question were, at a minimum,
“provided to” and/or a fact issue exists as to whether or not Nurse Menzies “reviewed” same
Page 25
-15-
in anticipation of her expert deposition testimony and/or in preparation of her expert report,
the express language of the current Texas Rules of Civil Procedure mandates that Relators
have waived any and all privileges that might have otherwise applied to such documents.
T
EX
.R.C
IV
.P. 192.3(e)(6), 192.5(c)(1). Further, regardless of whether or not the production
of such documents was “inadvertent” and/or a “mistake,” any and all privileges were waived
when the documents were “provided to, reviewed by, or prepared by or for [Nurse Menzies]
in anticipation of [her] testimony.” Id. (emphasis added). As such, this Court should
DENY, in all parts, Relators’ Petition for Writ of Mandamus.
B.
The Trial Court’s Decision Is Consistent With The Established
Precedents Of Other Jurisdictions Faced With Similar
Controversies.
Contrary to Relators’ argument, the trial court’s decision is consistent with the
established precedents of other jurisdictions faced with similar controversies.
Again, Relators argue that any waiver of privilege extends only to those documents or
material “that the expert actually relied [upon] in arriving at mental impressions or
opinions.” (Petition for Writ of Mandamus at 11) (emphasis added). The inherent injustice
in Relators’ argument is magnified by a brief overview of the established precedents from
other jurisdictions faced with similar controversies.
An analogous case to the case at bar is State ex rel. Tracy v. Dandurand, 30 S.W.3d
831 (Mo. banc 2000). In Tracy, the Supreme Court of Missouri was asked, as an issue of
first impression, to determine whether a party continues to have an attorney-client privilege
Page 26
-16-
as to documents that the party has “provided” to its retained expert witness who is designated
to testify. Id. at 832. The underlying dispute was brought by the plaintiff against her insurer
for exposing her to liability in excess of her policy coverage limits while defending her in a
wrongful death claim. Id. at 833. During the course of the bad faith lawsuit, the plaintiff
requested the production of her insurer’s entire claim file. Id. Although the insurer produced
some responsive documents, other documents were withheld as privileged. Id.
Eventually, the insurer designated a testifying expert, and “inadvertently” produced
to its expert some of the documents that were listed on the privilege log. Id. (emphasis
added). At the testifying expert’s deposition, the expert produced his file to the plaintiff,
which included the alleged privileged documents, and testified that he had reviewed his
entire file. Id. Shortly thereafter, the insurer filed a motion for protective order and/or
motion in limine asking the trial court to order the plaintiff to return the documents to the
insurer and the trial court enter an order preventing use of the documents or reference to the
documents at trial. Id. Although the trial court denied the insurer’s motion for protective
order, allowing the plaintiff to keep the documents, the trial court sustained the insurer’s
motion in limine to exclude use of the documents and prohibited the plaintiff from
questioning any witnesses about the documents. Id. at 833
S
34. The plaintiff filed a
prohibition (i.e., mandamus) action against the trial court. Id. at 834.
On writ of prohibition, the Supreme Court of Missouri noted that, in Missouri, “[t]he
discovery of facts known and opinions held by an expert are, until the expert is designated
Page 27
-17-
for trial, the work product of the attorney retaining the expert.” Id. However, “[o]nce the
retaining attorney decides to use the expert at trial and discloses him or her as a witness, the
expert is subject to discovery.” Id. Further, the Supreme Court of Missouri noted that the
Missouri rules allow for opposing counsel to probe a testifying expert on, among other
things, the expert’s qualifications, knowledge of the subject, and information the expert has
been provided. Id. at 835.
In applying those rules and principles to the issue at hand, the Supreme Court of
Missouri rejected the suggestion that “materials given to an expert can be withheld from
disclosure if the expert did not rely upon them.” Id. In support, the Supreme Court of
Missouri noted, in pertinent part, as follows:
To hold otherwise would allow the expert witness or the party
retaining the expert witness to select which documents to
produce after the expert has reviewed the documents in
preparation for the expert’s testimony. It is appropriate, at
deposition or trial, to cross-examine an expert witness as to
information provided to the expert that may contradict or
weaken the bases for his or her opinion regardless of whether
the expert relied upon or considered the information.
Id. (emphasis added). Further, even though the insurer’s disclosure was alleged to be
inadvertent, the Supreme Court of Missouri held that the privilege “has indeed been waived.”
Id. Of course, the Supreme Court of Missouri was quick to note also that “[i]f the party’s
attorney, in preparing the expert for deposition, finds that privileged documents have been
mistakenly provided to the expert, the attorneypresumably has the option of withdrawing the
expert’s designation prior to the deposition.” Id. at 835
S
36 (emphasis added). Nevertheless,
Page 28
-18-
because the insurer’s expert had been “provided the materials, was designated to testify,
ha[d] had his deposition taken, and ha[d] provided opposing counsel with the documents that
the insurer gave to him,” the Supreme Court of Missouri held that it was too late to withdraw
the experts designation “in order to make the documents secret again.” Id. at 836.
“The bell has been rung and cannot be unrung.” Id. (emphasis added); see also State ex
rel. Am. Econ. Ins. Co. v. Crawford, 75 S.W.3d 244, 246 (Mo. 2002) (holding that
designation of an expert as a trial witness begins a process of waiving privilege);
Stearrett v. Newcomb, 521 A.2d 636, 638 (Del. Super. 1986) (holding that where an attorney
forwards letters and memoranda to an expert who is expected to testify at trial, any claim of
privilege or work product is waived no matter what is contained in the documents).
Ultimately, the Supreme Court of Missouri concluded that “[a]ll material given to a testifying
expert must, if requested, be disclosed.” Tracy, 30 S.W.3d at 836 (emphasis added).
In this case, like Tracy, the mere fact that Nurze Menzies and Relators contend that
Nurse Menzies did not “rely” upon the alleged confidential and privileged documents to form
her opinions and/or expert report is of absolutely no consequence to the issue at hand.
As alluded to in Tracy, it is a fundamental concept, in cross-examining experts, that counsel
may cross-examine experts as to what changes of conditions and/or facts would effect the
experts’ opinions. Id. at 835. In fact, as recognized by the Supreme Court of the United
States, “[c]ross examination is the principal means by which the believability of a witness
and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).
Page 29
-19-
By ignoring the real facts and/or evidence in question, Relators are attempting to thwart the
jury’s and the parties’ search for the truth, which is a fundamental purpose for conducting
a trial and for allowing discovery. See, e.g., Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555
(Tex. 1990) (noting that the purpose of discovery is to seek the truth, so that disputes may
be decided by what the facts reveal, not by what facts are concealed); Lowry, 802 S.W.2d at
671 (noting that discovery is the “linchpin of the search for the truth, as it makes a ‘trial less
of a game of blind man’s bluff and more a fair contest with the issues and facts disclosed to
the fullest practicable extent.”) In light of the fact that the alleged confidential and privileged
documents in question contain facts and evidence directly contrary to the opinions of
Nurse Menzies and the position taken by Relators throughout this lawsuit, Real Parties
Interest should not be deprived of their right to a fair trial and the citizens of the State of
Texas should not be deprived of the “truth.”
Notwithstanding the foregoing, Relators contend, in their Brief on the Merits, that
Tracy is “fully distinguishable” from the case at bar. (Relators’ Brief on the Merits at 25.)
First, Relators argue that, unlike this case (i.e., an issue heavily disputed by Real Parties In
Interest), “the expert in Tracy testified to having ‘reviewed’ the documents.” (Id.)
Second, Relators argue that “the Tracy opinion does not discuss how the documents came
to be in the expert’s possession,” and “[t]he court appears to assume that they were
intentionally provided to the expert for purposes of preparing the expert’s trial testimony.”
(Id.) Third, Relators argue that “[t]he Tracy court expresslyacknowledged that a trial court,
Page 30
-20-
in a case with different facts (like ours) could order the return of inadvertently disclosed
privileged documents.” (Id.) Fourth, Relators argue that, “[w]hile [Real Parties In Interest]
asserted at page 15 of its Response that [Relators] failed to avail [themselves] of the
opportunity to withdraw the testifying expert designation of Nurse Menzies, that statement
assumes contrary to the evidence that [Relators] [were] aware of the contents of Nurse
Menzies’ file before the deposition began.” (Id. at 26.) Finally, Relators argue that “[t]he
Tracy court expressly reserved the issue as to whether the materials would be admissible for
other purposes, particularly for trial.” (Id.) Because Real Parties In Interest have already
deposed Nurse Menzies, Relators contend that Real Parties In Interest should be prevented
from using the documents in question for “other purposes, specifically in deposing other
witnesses.” (Id.)
As regards Relators’ first argument, while it is true that the expert in Tracy testified
that he reviewed his entire file, the Supreme Court of Missouri’s opinion did not rise or fall
on that issue. Tracy, 30 S.W.3d at 833
S
35. In fact, in the end, the Supreme Court of
Missouri concluded that “[a]ll material given to a testifying expert must, if requested, be
disclosed.” Id. at 836 (emphasis added). Perhaps equally as important, in this case, contrary
to Relators’ creative belief and argument that the “uncontroverted evidence shows that Nurse
Menzies did not read, review, or use [the documents in question] in arriving at her mental
impressions and opinions,” the actual evidence suggests and proves the exact opposite.
Stated differently, despite Relators’ effort to “split hairs” between the words glanced,
Page 31
-21-
reviewed, used, etc., a fair reading of the evidence reveals, at a minimum, that the documents
in question were “provided to” and/or that a fact issue exists as to whether or not the
documents were “reviewed by” Nurse Menzies in anticipation of her deposition testimony
and/or in preparation of her expert report. (R.R. at I-4; see also id. at H at p. 18, l. 1-6, p. 78,
l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.) Again, Nurse Menzies admitted, in her deposition,
that she reviewed all of the documents that she brought with her to her deposition, and took
at a look at all of the materials in the box provided to her by Relators. (R.R. at H at p. 18,
l. 1-6, p. 78, l. 21–p. 79, l. 24, p. 87, l. 16–p. 89, l. 4.) Conveniently, towards the end of her
deposition, and, now, Nurse Menzies contends that the alleged privileged documents were
not reviewed and/or considered by her for purposes of her testimony and/or expert report.
Because Nurse Menzies’ deposition testimony and Nurse Menzies’ Affidavit contain, at the
very least, contradicting statements, a fact issue exists with respect to same, and Relators
should not be allowed to suppress the truth through a creative play on words.
As regards Relators’ second argument regarding Tracy (i.e., that “the Tracy opinion
does not discuss how the documents came to be in the expert’s possession,” and “[t]he court
appears to assume that they were intentionally provided to the expert for purposes of
preparing the expert’s trial testimony.”), such argument is wrong. To be sure, long before
addressing the merits of the case, the Supreme Court of Missouri noted that the insurer
designated a testifying expert, and “inadvertently” produced to its expert some of the
documents that were listed on the privilege log. Tracy, 30 S.W.3d at 833. Stated differently,
Page 32
-22-
the Supreme Court of Missouri never “assume[d],” as argued by Relators, that the documents
were “intentionally” provided to the expert. Id.
Moreover, while Relators correctly point out (i.e., in their third argument) that the
Supreme Court of Missouri acknowledged a trial court’s discretion to order the return of
inadvertently disclosed documents under a different set of facts, the Supreme Court of
Missouri expressly announced that those different set of facts did not apply to an expert
witness. Id. at 835. Because the Tracy court was dealing with an expert witness,
“[e]ven though the disclosure of the documents was alleged to be inadvertent, [the Supreme
Court of Missouri] believe[d] the privilege [had] indeed been waived.” Id. On the other
hand, if the documents in question had been produced or disclosed in written discovery, then,
upon satisfying the burden that the documents were privileged, the Supreme Court of
Missouri may have upheld the trial court’s decision to order the return of the documents. Id.
Again, though, the above example did not fit the facts of Tracy and does not fit the facts and
circumstances before this Court and/or those before the trial court in this case.
Despite Relators’ argument regarding the fact that theywere not aware of the contents
of Nurse Menzies’ file before the deposition began (i.e., their fourth argument), such
argument does not impact the outcome in this case. As noted in Tracy, if Relators, in
preparing Nurse Menzies for her deposition, found that privileged documents had been
inadvertently provided to Nurse Menzies, then Relators had the option to withdraw her
designation prior to her deposition. See Tracy, 30 S.W.3d at 835
S
36. Even assuming, for
Page 33
-23-
arguments sake, that Relators did not become aware of the contents of Nurse Menzies’ file
until after the deposition began, Relators had an opportunity to review the documents before
the deposition,especiallyconsidering the fact Nurse Menzies admitted,in her deposition, that
she met with counsel for Relators for several hours before her deposition, and on several
occasions over the telephone. (R.R. at p. 18, l.-14–p. 19, l. 12.) Likewise, common sense
suggests that Relators had an opportunity to review the documents during the deposition of
Nurse Menzies. As it turns out, Relators either reviewed the documents and simply were not
happy with the results stemming from the deposition testimony or Relators chose not to
review same until after Nurse Menzies’ deposition. Either way, as set forth herein, Relators
waived any and all privileges that might have otherwise pertained to the documents in
question, and same does not effect the outcome of this case or the opinion in Tracy.
As regards Relators’ final argument regarding the issue of whether or not the materials
would be admissible for “other purposes,” including deposing “other witnesses,” Relators
misconstrue, once again, the Supreme Court of Missouri’s opinion in Tracy. In fact, contrary
to Relators’ interpretation of Tracy, the Supreme Court of Missouri did not reserve “the issue
as to whether the materials would be admissible for other purposes, particularly for trial.”
Id. Instead, the Supreme Court of Missouri noted that “[i]t is appropriate, at deposition or
trial, to cross-examine an expert witness as to information provided to the expert that may
contradict or weaken the bases for his or her opinion regardless of whether the expert relied
upon or considered the information.” Id. at 835 (emphasis added). Perhaps equally as
Page 34
3
In Texas, the use of depositions is governed by Rule 203.6 of the Texas Rules of Civil
Procedure. T
EX
. R. C
IV
. P. 203.6. It is well settled that “[a]ll or part of a deposition may be
used for any purpose in the same proceeding in which it was taken.” T
EX
.R.C
IV
.P.203.6(b)
(emphasis added).
-24-
important, the Supreme Court of Missouri announced that, “[o]nce the expert’s deposition
is taken, the deposition is available for use by any party, subject to [the rule regarding use of
depositions]. ” Id. at 836.
3
The bottom-line is that the “bright-line” rule announced in Tracy is applicable to the
facts and circumstances before this Court. In fact, contrary to Relators’ arguments, the facts
and circumstances in Tracy are virtually identical to the facts and circumstances at issue in
this case. Likewise, the rules of procedure that were analyzed in Tracy are virtually identical
to the Texas Rules of Civil Procedure. Accordingly, this Court should DENY, in all parts,
Relators’ Petition for Writ of Mandamus.
C.
The Trial Court’s Decision Is Consistent With The
Majority Of Authorities Analyzing This Issue Under
The Federal Rules Of Civil Procedure And Is
Supported By Strong Public Policy Considerations.
Not onlyis the trialcourt’s decision consistent with the established precedents of other
jurisdictions faced with similar controversies, but the trial court’s decision is consistent with
the majority of opinions addressing this issue under the Federal Rules of Civil Procedure and
is supported by strong public policy. After jumping to the heavily disputed conclusion that
the materials at issue have no relevancy to the opinions of Nurse Menzies and/or played no
part in her opinion, Relators’ contend that “no legitimate purpose is served” by stripping
Page 35
-25-
them of their alleged privileges. (Relators’ Brief on the Merits at 18-21.) As set forth below,
though, the trial court’s interpretation of the Texas Rules of Civil Procedure is consistent
with the Federal Rules of Civil Procedure, and the strong public policy favoring full
disclosure of experts outweighs and/or does not circumvent the policy behind protecting
privileged documents and/or opinions.
An instructive case is Gall v. Jamison, 44 P.3d 233 (Col. 2002). In Gall, a medical
malpractice action, one of the defendants served a notice of deposition duces tecum on one
of the plaintiffs’ testifying experts. Id. at 234. In the duces tecum, the defendant requested
that the testifying expert produce “‘all correspondence to/from plaintiffs’ counsel or anyone
else relating to this case.’” Id. In one of the letters that was requested by the defendant, there
was a discussion of deposition testimony considered important by the plaintiffs’ counsel, an
assessment of how defendants’ actions may have fallen below the standard of care, and
citation to medical journals that the plaintiffs’ counsel considered important. Id. As such,
the plaintiffs claimed that such correspondence was protected from discovery as work
product. Id. The defendant claimed, on the other hand, that any information provided to a
testifying expert was discoverable and outside the work product doctrine. Id. The trial court
agreed with the defendant, and ordered the plaintiffs to produce the correspondence. Id.
The trial court “reasoned that ‘Defendants are entitled to know whether [the plaintiffs’
expert] has in any way ‘shaped’ her testimony in response to impressions communicated by
plaintiffs’ counsel’ so that defendants could adequately impeach [the plaintiffs’ expert].” Id.
Page 36
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On mandamus, the Gall court began its analysis by comparing and contrasting the
Colorado Rules of Civil Procedure with the Federal Rules of Civil Procedure as same
pertained to expert witnesses. Id. at 234
S
35. After determining that the Colorado Rules of
Civil Procedure and the Federal Rules of Civil Procedure were “substantially similar,” the
Gall court noted, at the outset, that Rule 26(a)(2) of the Federal Rules of Civil Procedure
required a testifying expert “to produce before trial a written report or summary of her
testimony which includes ‘a complete statement of all opinions to be expressed and basis and
reasons therefor [and] the data or other information considered by the witness in forming the
opinions.’” Id. at 235. It then noted that “[t]he rule of disclosure embodied in Rule 26(a)(2)
shared “an uneasy coexistence with the attorney work product doctrine . . . .” Id. (citing F
ED
.
R. C
IV
. P. 26(b)(3)). Stated differently, the Gall court recognized that Rule 26(b)(3)
generallysubjected to discoverythose documents and tangible things prepared in anticipation
of litigation “only if the opposing party demonstrates a ‘substantial need’ for the materials
and cannot obtain the substantial equivalent without undue hardship.”
Id.
Despite recognizing that general rule, the Gall court was quick to note that “[t]he general
protection from discovery that Rule 26(b)(3) affords work product, however, is tempered by
the provisions of Rule 26(b)(4), to which Rule 26(b)(3) is subject.” Id. at 236.
In addressing the “uneasy coexistence” and/or the conflict surrounding the rule of
disclosure pertaining to experts and the protections afforded an attorney’s work product, the
Gall court looked, first, to a pre-amendment case. Id. at 236
S
37 (citing Boring v. Keller, 97
Page 37
-27-
F.R.D. 404, 407-08 (D. Colo. 1983) (holding that letters containing an attorney’s work
product that were shared with the attorney’s expert were discoverable because (1) the work
product privilege is waived when otherwise protected materials are used to influence and
shape testimony, and (2) the adverse party must be permitted to inspect the shared documents
in order to effectively cross-examine the expert witness). Id. The Gall court looked, next,
to the Federal Rule’s advisory committee’s comments regarding the changes to the discovery
of experts. Id. at 237. In doing so, the Gall court found that “the advisory committee
criticized the practice of shielding from discovery the work product given by attorneys to
experts.” Id. It found also that the advisory committee “concluded that claims of work
product protection should not thwart discovery of materials provided to an expert witness,
stating that in light of the ‘obligation of disclosure, litigants should no longer be able to argue
that materials furnished to their experts to be used in forming their opinions - whether or not
ultimately relied upon by the expert - are privileged or otherwise protected from disclosure
when such persons are testifying or being deposed.” Id.
After addressing the “uneasy coexistence” and/or the conflict surrounding the rule of
disclosure pertaining to experts and the protections afforded an attorney’s work product, the
Gall court noted that “Rule 26(b)(3) concerning protection of opinion work product is
‘subject to’ Rule 26(b)(4), indicating that the work product doctrine does not protect the
materials informing the expert’s report or opinion.” Id. at 238. Based on the unambiguous
language of the commentary, the Gall court concluded that “opinion work product that is
Page 38
-28-
reviewed or considered byan expert in preparation for testimonyat trial is discoverable under
Rules 26(a)(2)(B) and 26(b)(4)(A).” Id. at 239.
From the standpoint of public policy, the Gall court noted that “[s]trong public policy”
supported a construction of broad disclosure. Id. In support thereof, the Gall added, in
pertinent part, as follows:
A bright-line rule promotes efficiency, fairness, and the truth seeking process.
Requiring trial courts to review every expert communication in camera to
determine the appropriate degree of disclosure, on the other hand, simply
foments needless discovery battles, undercuts the truth seeking principles of
the rules of civil procedure, and wastes scarce judicial resources. . . . A bright-
line rule preserves judicial economy by obviating the need for a judge to
consider whether counsel’s communications to retained experts contain work
product. It also frees trial courts from the burdensome task of sifting through
volumes of documents to separate ‘factual work product’ from ‘opinion work
product’ . . . . A bright-line approach also gives parties notice of precisely
which materials will be discoverable in every case, thereby reducing the
number of discovery disputes. . . . Perhaps most importantly, a bright-line
disclosure rule advances the truth seeking function of the discovery rules.
Id. at 239
S
40 (emphasis added). Additionally, the Gall court noted that, without access to
the documents or materials that an expert was provided, “the opposing party will be unable
to conduct a full and fair cross-examination of the expert.” Id. at 240. Moreover, “[a] bright-
line rule’s promotion of the truth seeking function of discovery does not compromise the
strong policies underlying the work product doctrine.” Id.
In denying the plaintiffs’ mandamus relief, the Gall court emphasized that “a
communication is discoverable even if the expert did not rely on it in forming her opinion;
she need only consider the communication in developing her opinion.” Id. (emphasis added).
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To that end, where an expert has “‘read or reviewed the privileged materials before or in
connection with formulating his or her opinion, the expert will be deemed to have
‘considered’ those materials for purposes of Rule 26(a)(2)(B).’” Id. at 241. After all,
“‘documents considered but rejected bythe expert trial witness could be even more important
for cross-examination than those actually relied upon by him.’” Id.
In this case, like Gall, after comparing and contrasting the Texas Rules of Civil
Procedure with the Federal Rules of Civil Procedure, it becomes apparent that the Texas
Rules of Civil Procedure and the Federal Rules of Civil Procedure are virtually the same.
To be sure, similar to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, Rule 192.3(e)
of the Texas Rules of Civil Procedure provides for discovery of, among other things, “the
facts known by the expert that relate to or form the basis of the expert’s mental impressions
and opinions . . . regardless of when and how the factual information was acquired, and “all
documents, tangible things, reports, models, or data compilations that have been provided
to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony.”
T
EX
. R. C
IV
. P. 192.3(e)(3), (6). Further, similar to Rule 26(b)(3) of the Federal Rules of
CivilProcedure, Rule 192.5(b) of the Texas Rules of CivilProcedure generallysubjects work
product to discovery only upon a showing of “substantial need” and “undue hardship” to
obtain same by some other means. T
EX
. R. C
IV
. P. 192.5(b)(2). Moreover, just as Rule
26(b)(3) of the Federal Rules of Civil Procedure is “subject to” Rule 26(b)(4)(A) of the
Federal Rules of Civil Procedure, “indicating that the work product doctrine does not protect
Page 40
4
To support their position that, even under the amended Texas Rules of Civil
Procedure, experts must “truly rely” on documents before waiving any privileges, Relators
direct this Court’s attention to In re Bell Helicopter Textron, Inc., 87 S.W.3d 139
(Tex. App.–Forth Worth 2002, orig. proceeding). (Relators’ Brief on the Merits at 23-24.)
Although the In re Bell Helicopter court did apply the amended Texas Rules of Civil
Procedure regarding experts to the facts of that case, it did not apply same to facts remotely
similar to the facts before this Court. Id. at 149. Instead, the In re Helicopter court was
faced with the issue of whether information acquired by an expert in a prior proceeding was
discoverable in a new proceeding. Id. Of course, the In re Helicopter court held that
-30-
the materials informing the expert’s report or opinion,” Rule 192.5(b)(2) of the Texas Rules
of Civil Procedure is “subject to” Rule 192.5(c) of the Texas Rules of Civil Procedure.
T
EX
. R. C
IV
. P. 192.5(b)(2) (expressly excluding from work product “information
discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and
contentions”).
Because the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure
regarding discovery of experts are virtually identical, there is no reason to depart from the
rationale set forth in Gall and the majority of jurisdictions addressing the issue before this
Court. In fact, the rationale set forth by the Federal Rule’s advisory committee and addressed
in Gall should apply equally under the Texas Rules of Civil Procedure. Stated differently,
“claims of work product protection should not thwart discovery of materials provided to an
expert witness, [and] in light of the ‘obligation of disclosure, litigants should no longer be
able to argue that materials furnished to their experts to be used in forming their opinions -
whether or not ultimately relied upon by the expert - are privileged or otherwise protected
from disclosure when such persons are testifying or being deposed. ” Gall, 44 P.3d at 237.
4
Page 41
“the testifying expert’s mental impressions and opinions concerning the case, and the facts
known by the expert that relate to or form the basis of the expert’s mental impressions and
opinions formed or made in connection with the case in which discovery is sought, are
discoverable. Id. (emphasis original). To that end, contrary to Relators’ argument, such
opinion is not beneficial to this Court’s analysis in this case.
-31-
Further, as referenced in Tracy, the rationale should applyregardless of whether the materials
furnished to the expert were furnished intentionally or inadvertently. Tracy, 30 S.W.3d at
835
S
36. Accordingly, this Court should DENY, in all parts, Relators’ Petition for Writ of
Mandamus.
D.
Any Objections Pertaining To The Documents In Question, Which
Were Provided To, Reviewed By, Or Prepared By Or For Relators’
Testifying Expert, Should Be Limited To Objections Regarding
Admissibility At Trial, And Such Objections Are Premature And
Not Before This Court.
Because all relevant authorities and principles expressly provide that Relators waived
any and all privileges that might have otherwise applied to the documents in question, the
only possible objections left are those objections pertaining to the admissibility of such
documents at trial, and such objections are premature. Stated differently, the issue of
whether or not the documents in question were discoverable and/or privileged became a moot
issue the minute that the documents were “provided to, reviewed by, or prepared by or for
[Nurse Menzies] in anticipation of [her] testimony.” T
EX
. R. C
IV
. P. 192.3(e)(6)
(emphasis added); see also T
EX
. R.C
IV
.P. 194.2(f)(4)(A). Further, because it is well settled
that “[a]ll or part of a deposition may be used for any purpose in the same proceeding in
which it was taken,” any objections to the continued use of the deposition and evidence in
Page 42
-32-
question are premature, and serve only one purpose; to deny the parties and citizens of the
State of Texas the truth. See T
EX
. R. C
IV
. P. 203.6(b) (emphasis added). After all, and,
perhaps ironically, the very information and facts that Relators’ expert contends now was not
important or relevant to her opinions is information and are facts that fly directly in the face
of the defenses set forth throughout this lawsuit by Relators. Perhaps the truth lies in that
information and facts, or perhaps it does not; either way, Real Parties In Interest and citizens
of the State of Texas are entitled to search for, and, ultimately, learn the truth.
Although Relators may arguably have objections to the admissibility of such documents at
the time of trial, a determination along those lines is premature and not before this Court.
As such, this Court should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
E.
Relators’ Reliance Upon Rule 193.3(d) Of The Texas Rules Of Civil
Procedure Is Misplaced Under The Facts And Circumstances Of
This Case.
Contrary to Relators’ arguments, Rule 193.3(d) of the Texas Rules of Civil Procedure
does not apply to the facts and circumstances before this Court and/or those before the trial
court. As a general rule, it is true that “[a] party who produces materials or information
without intending to waive a claim of privilege does not waive that claim . . . .” T
EX
. R. C
IV
.
P. 193.3(d). In fact, once a party discovers that privileged documents have been
inadvertently produced, the party has ten (10) days to amend their response and identify the
material or information produced and stating the privilege asserted. Id. However, Rule
193.3(d) of the Texas Rules of Civil Procedure (i.e., the so-called “snap back” provision)
Page 43
-33-
does not apply to information discoverable under Rule 192.3 of the Texas Rules of Civil
Procedure concerning experts. T
EX
. R. C
IV
. P. 192.5(c)(1) (information discoverable under
Rule 192.3 concerning experts is not protected from discovery as work product).
In this case, Relators’ arguments surrounding Rule 193.3(d) of the Texas Rules of
Civil Procedure lack merit. To be sure, on their face, the documents in question cannot be
considered privileged. As noted previously, once the documents in question were
“provided to, reviewed by, or prepared by or for [Nurse Menzies] in anticipation of [her]
testimony,” the documents became discoverable and any and all privileges were waived.
T
EX
. R. C
IV
. P. 192.3(e)(6) (emphasis added); see also T
EX
. R. C
IV
. P. 192.5(c)(1),
194.2(f)(4)(A). Perhaps equally as important, it bears noting that the so-called “snap back
provision” is found under the main title, “Written Discovery . . . .,” which, at a bare
minimum, implies that such provision is not applicable to the discovery of experts. T
EX
. R.
C
IV
. P. 193. For example, if the documents in question had been produced to Real Parties
In Interest by Relators in response to Real Parties In Interest’ Request for Production, then
Relators might have an argument, upon satisfying their burden of proof, that the documents
in question were privileged, but only so long as the documents were not “provided to,
reviewed by, or prepared by or for [Nurse Menzies] in anticipation of [her] testimony.” Id.
Unfortunatelyfor Relators, the above example does not fit the facts and circumstances before
this Court and/or before the trial court. Perhaps more importantly, the express language of
the current Texas Rules of Civil Procedure and the above-referenced case law on the issue
Page 44
-34-
facing this Court is clear, concise, and to the point; that is to say that, regardless of whether
the documents were “inadvertently” or “mistakenly” “provided to, reviewed by, or prepared
byor for [Nurse Menzies] in anticipation of [her] testimony,” the documents are discoverable
and any and all privileges are waived. T
EX
.R.C
IV
.P. 192.3(e)(6) (emphasis added); see also
T
EX
. R. C
IV
. P. 194.2(f)(4)(A). Any ruling to the contrary ignores the well established
precedents of this State and the majority of other jurisdictions. Accordingly, this Court
should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
F.
Relators Failed To Satisfy Their Burden To Avoid Discovery Of
The Alleged Confidential And Privileged Documents.
Even assuming, for arguments sake, that this Court determines that the trial court, in
determining that Relators’ waived any and all alleged privileges pertaining to the documents
in question, incorrectly applied the Texas Rules of Civil Procedure as same pertain to
discovery of experts, as well as the interpretive case law, the evidence reveals that Relators
failed to satisfy their burden to avoid discovery of such documents. It is well settled that the
burden is on the party seeking to avoid discovery to plead the basis for exemption or
immunity and to produce evidence supporting that claim. Lowry, 802 S.W.2d at 671.
The purpose of placing the burden on the party resisting discovery is to insure that the trial
court has sufficient information before it to make an intelligent decision whether a privilege
applies. Id. Significantly, if the matter for which a privilege is sought has been disclosed to
a third party, thus raising the question of waiver of the privilege, the party asserting the
Page 45
-35-
privilege has the burden of proving that no waiver has occurred. Jordan v. Fourth Court of
Appeals, 701 S.W.2d 644, 649 (Tex. 1985).
Importantly, a trial judge, who denies discovery in the absence of evidence
substantiating the claim of privilege, abuses his discretion. Lindsey v. O’Neill, 689 S.W.2d
400 (Tex. 1985). Further, with respect to the resolution of factual issues or matters
committed to the trial court’s discretion, a reviewing court may not substitute its judgment
for that of the trial court unless the trial court could reasonably have reached only one
decision and the trial court’s decision is shown to be arbitrary and unreasonable. Walker v.
Packer, 827 S.W.2d 833, 839
S
40 (Tex. 1992).
As noted previously, the Blackmon court, which Relators rely upon, addressed, under
the old, narrow Texas Rules of Civil Procedure, circumstances similar to the circumstances
of this case. Blackmon, 810 S.W.2d 438. The Blackmon court held that “[t]o the extent that
[the expert of the party asserting the privileges] would testify concerning these [privileged]
matters as an expert witness, disclosure by him would have the same effect as disclosure to
a third party, and would result in waiver of the privilege.” Id. As such, the Blackmon court
held that the party asserting the privileges had the burden to provide a reasonable means of
segregating the documents which may form the basis of its expert’s testimony or which the
expert may rely upon in testifying as an expert. Id.
In applying those rules and/or principles to the facts before it, the Blackmon court
noted that the party asserting the privileges produced over 914 documents for in camera
Page 46
-36-
inspection that covered several different subject matters, including, but not limited to,
attorney’s fees, evaluation of potential witnesses and discussion of trial strategy. Id.
Although the party asserting the privileges asserted general privileges to those documents,
the Blackmon court noted that the party asserting the privileges did not segregate those
documents as to the various subjects which would or would not form the basis of its expert’s
testimony. Id. “[T]he burden was on [the party asserting the privileges] to segregate the
documents not only as to privilege asserted, but as to subject matters involving privilege.”
Id. at 441 (emphasis added). Ultimately, the Blackmon court held that the trial court did not
abuse its discretion in overruling the motion for protection filed by the party asserting the
privileges. Id. To that end, any and all privileges were waived. Id.; see also Weisel
Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (holding that summary listing of
documents under the heading “Attorney-Client/Attorney Work-Product” was no evidence of
privilege, but merely an “unverified, global allegation that the list of documents was
protected by one or both privileges.”)
In this case,like Blackmon and Curry, Relators onlyasserted general privileges and/or
made global allegations of privilege to the documents in question. (R.R. at L.)
Although Relators referred the trial court to the deposition testimony of Nurse Menzies and
the Affidavit of Nurse Menzies to support their contention that none of the alleged
confidential and privileged documents were relied upon byNurse Menzies in the formulation
of her opinions and/or expert report, Relators did so in a conclusory manner and did not
Page 47
-37-
segregate the documents as to the various subjects which would or would not form the basis
of Nurse Menzies’ expert testimony. (Id.) Further, the Affidavit of Nurse Menzies and the
deposition testimony relied upon by Relators directly contradicts previous sworn testimony
given by Nurse Menzies in her deposition. (Id. at H at p. 18, l. 1-6, p. 78, l. 21–p. 79, l. 24,
p. 87, l. 16–p. 89, l. 4.) In fact, in light of the broad scope of Nurse Menzies’ deposition
testimonyand anticipated trial testimony, Relators made itvirtuallyimpossible and/or at least
impractical for the trial court to determine whether or not Relators had satisfied their burden
of proving that no waiver occurred. Because Relators fell short of satisfying their burden,
the trial court correctly determined that Relators waived any and all privileges to the
documents in question. Again, notwithstanding the trial court’s correct ruling, the trial court
is always free to consider Relators’ objections, if any, pertaining to the admissibility of such
documents at the time of trial, including, but not limited to, relevance, etc. The issue of
admissibility is not, however, before this Court and was not before the trial court.
Accordingly, this Court should DENY, in all parts, Relators’ Petition for Writ of Mandamus.
PRAYER
Based on the foregoing, Real Parties In Interest, Mona L. Palmer, Individually, and
as Surviving Parent, and on behalf of the Estate of Brandi Lee Palmer, Deceased, respectfully
pray that this Court DENY, in all parts, the Petition for Writ of Mandamus, and for such
other and further relief to which Real Parties In Interest may be entitled.
Respectfully submitted,
Page 48
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JOHANSON & FAIRLESS, L.L.P.
TODD TAYLOR, TBA#00785087
MIKE JOHANSON, TBA#10670400
CHRIS M. VOLF, TBA#24033299
1456 First Colony Boulevard
Sugar Land, Texas 77479
(281) 313-5000
Fax: (281) 340-5100
ATTORNEYS FOR REAL PARTIES IN INTEREST
VERIFICATION
THE STATE OF TEXAS
§
§
COUNTY OF FORT BEND
§
BEFORE ME, the undersigned authority, personally appeared TODD TAYLOR,
known to me and first being duly sworn according to law upon his oath deposed and said:
“My name is Todd Taylor. I am over 18 years of age, I have never been
convicted of a felony, and I am fully competent to make this Affidavit.
I am counsel of record for Real Parties In Interest the above numbered and
entitled case. I have read the attached Brief on the Merits, and, except for
those statements verified by the affidavits of others and/or through exhibits
included in the mandamus record, I have personal knowledge of the facts
stated therein, and they are true and correct. Further, the documents contained
within the Appendices attached hereto are true and correct copies of pleadings,
motions, exhibits, and/or other documents filed with the trial court in the
underlying action.”
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Further, affiant sayeth not.
______________________________
TODD TAYLOR
SUBSCRIBED AND SWORN TO BEFORE ME on the ____ day of February , 2005,
to certify which witness my hand and official seal.
______________________________
Notary Public in and for
Fort Bend County, Texas
Commission Expires: ________
CERTIFICATE OF SERVICE
I hereby certify that on this 7 day of February, 2005, a true and correct copy of Real
th
Parties In Interest’s Brief on the Merits was served upon all counsel of record by telecopier
and/or certified mail, return receipt requested.
_____________________
TODD TAYLOR