Court of Appeals of Texas, Eighth District, El Paso
IN RE: DISH NETWORK, LLC, AND ECHOSPHERE, LLC, RELATORS.
ORIGINAL PROCEEDING IN MANDAMUS.
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, Justice.
DISH Network, LLC and Echosphere, LLC (referred to
collectively as DISH), have filed a mandamus petition against
the Honorable Luis Aguilar, Judge of the 243rd District Court
of El Paso County, Texas, to challenge an order compelling
discovery of documents allegedly protected by the
attorney-client and work product privileges. DISH also
challenges the trial court's refusal to rule on the
motion to compel arbitration until after the challenged
discovery has been completed. We conditionally grant mandamus
Delgado was employed by DISH on December 17, 2007, and she
worked as the Human Resources Manager until her termination
on August 25, 2015. In this capacity and during the same
period, Delgado communicated with DISH's outside counsel,
Hagan Noll & Boyle (HNB), in employment-related lawsuits
brought against DISH. Delgado was not a named party, and
there is no evidence that she was a potential party in any of
these suits. Delgado also assisted HNB by gathering documents
and information in response to discovery requests, setting up
meetings for HNB with fact witnesses, assisting counsel with
factual investigation into claims and defenses, and
coordinating the attendance of witnesses at depositions and
trial. Delgado testified by deposition as a fact witness in
one arbitration proceeding, Nadia Barrera v. Echosphere,
L.L.C., cause number 01-14-0001-1552. HNB attended that
deposition on behalf of DISH. She never testified as a
witness in any trial or arbitration proceeding defended by
HNB. Likewise, she never sat as a corporate representative of
DISH in any trial or arbitration defended by HNB.
20, 2016, Delgado filed suit against DISH alleging claims for
discrimination and retaliation. DISH's counsel, HNB, sent a
letter to Delgado's counsel regarding an arbitration
agreement signed by Delgado when she was hired by Dish.
Delgado's attorney responded that a conflict of interest
may exist between Delgado and HNB. DISH sent a letter to
Delgado's counsel asserting that there was no
attorney-client relationship between Delgado and HNB or a
substantial relationship between Delgado's prior
interactions with HNB and her claims against DISH. DISH filed
a motion to compel arbitration and set it for a hearing on
September 15, 2016.
days later, Delgado served DISH with requests for production
seeking the following:
1. Any and all documents, notes, emails, messages, memoranda,
pleadings or other documents that relate to any pleadings
filed by Defendants' counsel in any case where Plaintiff
was identified as a witness, a corporate representative,
employee or otherwise provided any statements or testimony,
including but not limited to any depositions, statements,
affidavits, correspondence, emails or other documents that
2. Any and all documents, notes, emails, memoranda or other
documents exchanged between Plaintiff and David Noll,
Stephanie Waller or any other lawyers affiliated with Mr.
Noll's law firm, employed by the same law firm or
associated with Mr. Noll or his law firm, including but not
limited to any email correspondence, messages, pleadings or
filed a written objection to the hearing on the motion to
compel arbitration and asked the trial court to continue the
hearing and permit discovery on the issue of disqualification
of HNB. At the hearing on September 15, 2016, the trial court
heard DISH's motion to compel arbitration, but the court
did not issue a ruling either granting or denying the motion.
The court instead granted Delgado's objection to hearing
the motion to compel arbitration prior to the completion of
discovery regarding disqualification of HNB.
filed a response to Delgado's requests for production
regarding disqualification asserting objections based on
attorney-client privilege, work product doctrine, and
confidentiality agreements. The response included a
declaration prepared by James M. McCormack expressing his
opinion that an attorney-client relationship did not exist
between HNB and Delgado, and therefore, HBN had an ethical
obligation to assert the attorney-client privilege and resist
discovery by all lawful means. DISH also filed a motion for
protective order with respect to the discovery requests. DISH
subsequently served Delgado with an affidavit by HNB
attorney, Stephanie Waller, in support of its objections to
the discovery requests, and it filed a privilege log. DISH
also produced non-privileged documents and a transcript of
Delgado's deposition testimony given in the Barrera
v. Echosphere arbitration proceeding. Following a
hearing, the trial court granted Delgado's motion and
entered an order compelling discovery of documents which DISH
claims are protected by the attorney-client and work product
DOCUMENTS AND COMMUNICATIONS
first issue, DISH contends that the trial court clearly
abused its discretion by ordering production of documents and
communications protected by the attorney-client privilege and
work product doctrine. Delgado responds that the
communications are subject to the joint representation
exception to the attorney-client privilege.
entitled to mandamus relief, a relator must generally meet
two requirements. First, the relator must show that the trial
court clearly abused its discretion. In re Prudential
Insurance Company of America, 148 S.W.3d 124, 135 (Tex.
2004). A trial court abuses its discretion when it acts
arbitrarily, capriciously, and without reference to guiding
principles. In re Green, ___ S.W.3d ___, 2016 WL
7031055, at *2 (Tex.App.--El Paso December 2, 2016, orig.
proceeding); In re Mid-Century Insurance Company of
Texas, 426 S.W.3d 169, 178 (Tex.App.--Houston [1st
Dist.] 2012, orig. proceeding). Mandamus relief is available
when the trial court erroneously orders the disclosure of
privileged information because appeal does not provide an
adequate remedy. See In re Christus Santa Rosa Health
System, 492 S.W.3d 276, 279 (Tex. 2016); In re E.I.
DuPont de Nemours & Company, 136 S.W.3d 218, 223
Privilege and Work Product Doctrine
Rule 503(b)(1), a client has a privilege to refuse to
disclose and to prevent any other person from disclosing
confidential communications made to facilitate the rendition
of professional legal services to the client. Tex.R.Evid.
503(b)(1). The attorney-client privilege protects these
confidential communications between a client or the
client's representative and the lawyer. Tex.R.Evid.
503(b)(1)(A). This privilege protects not only the
communications between the lawyer and client, but also
communications between their representatives. Tex.R.Evid.
503(b); In re Fairway Methanol LLC, 515 S.W.3d 480,
487-88 (Tex.App.--Houston [14th Dist.] January 31, 2017,
orig. proceeding). Rule 503's definition of
"client's representative" includes any person
who, for the purpose of effectuating legal representation for
the client, makes or receives a confidential communication
while acting in the scope of employment for the client.
Tex.R.Evid. 503(a)(2)(B); see also TEX.DISCIPLINARY
R. PROF. CONDUCT 1.12, reprinted in Tex.Gov't
Code Ann., tit. 2, subtit. G, app. A (West 2013)(Tx. State
Bar R. art. X, § 9)("A lawyer employed or retained
by an organization represents the
192.5 protects an attorney's work product from discovery.
See Tex.R.Civ.P. 192.5(b). The protection extends to
materials developed and communications made in anticipation
of litigation or for trial for or by a party or its
representatives, including the party's attorneys,
employees, and agents. See Tex.R.Civ.P. 192.5(a).
party resisting discovery bears the burden of proving an
applicable privilege. In re E.I. DuPont de Nemours &
Company, 136 S.W.3d at 223, 225. The party asserting a
privilege must establish by testimony or affidavit a
prima facie case for the privilege. In re
Christus, 492 S.W.3d at 279-80; In re Memorial
Hermann Hospital System, 464 S.W.3d 686, 698 (Tex.
2015). If the party carries its burden of establishing a
prima facie case that the documents are privileged,
the burden shifts to the party seeking production to prove
that an exception to the privilege applies. In re
Christus, 492 S.W.3d at 279-80.
Evidence -- ...