Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-00175
Before Justices Moseley, Lang-Miers, and Evans
DAVID EVANS JUSTICE
Relators filed this mandamus proceeding after the trial court ordered relator, Fisher & Paykel Appliances, Inc., to produce certain documents that relator contends are not subject to discovery. We deny relief.
This is a wrongful death and products liability case brought by real parties in interest Wayne Webb, individually and as a representative of the estate of Rosemary Webb, Michael Webb and David Webb. Real parties allege that relator, Fisher & Paykel, manufactured a defectively designed and unreasonably dangerous clothes dryer that caused a fire that destroyed the Webb's home and that led to the death of Rosemary Webb.
In discovery, real parties propounded a request for production of documents that required Fisher & Paykel to "[p]roduce all correspondence from Fisher & Paykel or anyone on its behalf to any governmental agency regarding this occurrence." Real parties did not define the term "occurrence." Fisher & Paykel objected to this request for production of documents as follows:
Defendant objects to this request because correspondence between this Defendant and certain governmental agencies are privileged and protected from discovery under the self-critical analysis privilege. Defendant further objects to this request because it seeks information and documents protected from disclosure/production. The documents are confidential, privileged, trade secrets and proprietary, protected under Texas and federal common law, Texas state law, and under authority in Section 6 of the CPSA, 15 U.S.C. § 2055, the Trade Secrets Act, 18 U.S.C. § 1905 and the Freedom of Information Act, 5 U.S.C. § 552(b).
Real parties in interest moved to compel. Fisher & Paykel responded and identified three reports that it contends were covered by this objection. Fisher & Paykel filed these three reports with the United States Consumer Product Safety Commission ("CPSC") regarding incidents related to the safety of its gas clothes dryers. In its brief responding to the motion to compel, Fisher & Paykel argued that these three documents were covered by the self-critical analysis privilege. Fisher & Paykel also referred in its briefing to the trade secret privilege, attorney work product privilege, and Rule 502 of the Texas Rules of Evidence. Fisher & Paykel provided an affidavit supporting its claim of "privilege, " but did not submit a withholding statement and privilege log at that time.
The trial court conducted a hearing on the motion to compel. Although the hearing centered largely on Fisher & Paykel's claim that the self-critical analysis privilege protected the documents from disclosure, Fisher & Paykel briefly argued that some portions of the documents were protected from discovery because they contained work product and asked for a ruling on that claim of privilege. Fisher & Paykel still had not at that point served or filed a withholding log or otherwise identified any specific portion of the documents claimed to be withheld on the grounds of work product privilege.
Upon conclusion of the hearing, the trial court ordered Fisher & Paykel to tender all "responsive documents" for review in camera. Fisher & Paykel complied, submitted the three reports in camera, filed a withholding statement and privilege log, and simultaneously moved for reconsideration arguing for the first time that the documents were not responsive to the request for production. The trial court considered the additional briefing, the withholding statement and privilege log, the additional evidence submitted by Fisher & Paykel, and reviewed the documents in camera. Upon completion of its in camera review, the trial court ordered Fisher & Paykel to produce the documents to real parties.
STANDARD OF REVIEW
To obtain mandamus relief, the relator must show both that the trial court has clearly abused its discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court has "no 'discretion' in determining what the law is or applying the law to facts." In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). "A party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error." In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (per curiam) (orig. proceeding); Walker, 827 S.W.2d at 843 (Tex. 1992); In re Blackstone Med., Inc., 372 ...