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In re Dish Network, LLC

Court of Appeals of Texas, Eighth District, El Paso

June 30, 2017



          Before McClure, C.J., Rodriguez, and Palafox, JJ.


          YVONNE T. RODRIGUEZ, Justice.

         Relators, 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 relief.


         Yvette 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.

         On July 20, 2016, Delgado filed suit against DISH alleging claims for discrimination and retaliation.[1] 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.

         A few 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 involve Plaintiff.
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 other documents.

         Delgado 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.

         DISH 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[2] 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 privileges.


         In its 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.

         Standard of Review

         To be 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 (Tex. 2004).

         Attorney-Client Privilege and Work Product Doctrine

         Under 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 entity.").[3]

         Rule 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).

         The 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.

         The Evidence -- ...

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