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Horne v. Texas Department of Transportation

United States District Court, E.D. Texas, Sherman Division

December 26, 2019




         On December 12, 2019, the Court was notified of multiple discovery disputes between the parties. Pursuant to the Court's December 13, 2019, Order (Dkt. 32), Plaintiffs Robert A. Horne, Eric Richards, and Victor Carrell (collectively, “Plaintiffs”) submitted a letter brief regarding their discovery disputes (Dkt. 34), to which Defendant Texas Department of Transportation (“TxDOT”) filed a response (Dkt. 36). TxDOT also filed a letter brief regarding its discovery disputes (Dkt. 33), to which Plaintiffs filed a response (Dkt. 35). On December 18, 2019, and continuing on December 20, 2019, the Court held a telephonic hearing regarding the disputes (the “Hearing”). See Docket Entries on December 18, 2019, and December 20, 2019.


         In its letter brief, TxDOT argues Plaintiffs' privilege log is insufficient because it “does not indicate who the witness is, how many messages occurred, or the nature of the communications in a manner that would enable TxDOT to assess the claim of privilege.” Dkt. 33. TxDOT also argues that text messages are not considered work product, and therefore, the text exchanges with witnesses identified on Plaintiffs' privilege log should be produced. See id. Plaintiffs respond that communications by counsel with witnesses are protected work product because disclosure could disclose Plaintiffs' litigation strategy. See Dkt. 35.

         Under Federal Rule of Civil Procedure 26(b)(5)(A), a party withholding information by claiming it is privileged or subject to protection as trial-preparation material must “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A). While the Rule does not “attempt to define for each case what information must be provided, . . . a privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to test the merits of the privilege claim.” Equal Employment Opportunity Commission v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (quotations omitted).

         A party may claim information is protected under the work product doctrine if it constitutes “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representation concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B). “The work-product doctrine provides qualified protection of documents and tangible things prepared in anticipation of litigation, including . . . memoranda of witnesses' statements.” United States v. Ocwen Loan Servicing, LLC, 2016 WL 1031157, at *2 (E.D. Tex. March 15, 2016) (quotations omitted).

         After reviewing Plaintiffs' privilege log, the Court agrees with TxDOT that the privilege log needs additional information to comply with the Federal Rules. Specifically, Plaintiffs must provide enough information to allow TxDOT to assess Plaintiffs' claims of privilege. See Fed. R. Civ. P. 26(b)(5)(A).

         While TxDOT specifically argues Plaintiffs must disclose the identities of the witnesses who sent or received text messages to Plaintiffs' counsel, the Court finds this information constitutes work product, as it tends to reveal Plaintiffs' litigation strategy. See In re Harwood P- G, Inc., 403 B.R. 445, 470 (W.D. Tex. 2009) (citing Electronic Data Systems Corp. v. Steingraber, 2003 WL 21653405, at *2 (E.D. Tex. July 9, 2003)). Therefore, while Plaintiffs are required to provide additional information to bring their privilege log into conformity with the Federal Rules, the Court declines to require Plaintiffs to provide names of the witnesses with whom Plaintiffs' counsel communicated.

         As detailed below, the Court orders Plaintiffs to produce a revised privilege log by January 3, 2020. The Court further orders the parties to file any objections to privilege logs with the Court by January 10, 2020. If objections are filed, the parties shall be required to file responses to those objections and produce the objectionable documents for in camera review by January 17, 2020.


         Plaintiffs argue TxDOT has failed to produce responsive documents to Plaintiffs' Request for Production (“RFP”) 39, 42, 43, 45, 46, 47, and 28. See Dkt. 34. TxDOT maintains these RFPs seek irrelevant information and are harassing to TxDOT. See Dkt. 36.


         In their letter briefing and at the Hearing, the parties represented agreements as to RFP 43 and 45. See Dkt. 34. Regarding RFP 42, Plaintiffs agreed to TxDOT's production of one-hundred forty-two (142) documents potentially responsive to RFP 42.

         Regarding RFP 28, the Court previously ordered TxDOT to produce documents responsive to RFP 28, for the period of July 2015, through September 2015. See Dkt. 28. In their letter brief, Plaintiffs claim they have not been provided with any such documents and request they be granted access to the Sulphur Springs yard to inspect a book Defendants believe contain the requested documents. See Dkt. 34 at 2. In response, TxDOT offered to produce the book for inspection “at a mutually agreeable time and location.” See Dkt. 36 at 3. At the Hearing, TxDOT reversed its position and opposed allowing Plaintiffs to conduct an onsite inspection of the book. Based on TxDOT's agreement to Plaintiffs' inspection of the book in its briefing to the Court, the Court finds that inspection of the book responsive to Plaintiffs' RFP 28, has been agreed to, and should proceed at a mutually agreeable time.


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