An educational decision was recently rendered by the Texas Fourteenth Court of Appeals, styled In Re Atlantic Sounding Co., Inc.. It is a proceeding for a writ of Mandamus (seeking an order to compel a lower tribunal to take action). There are three "extraordinary writs" that are of general interest. They are discussed more in If it's Moot, What Does it Matter (August 2018).
It is noteworthy that Atlantic Sounding was decided on August 28, 2018. The petition for writ of mandamus was filed just over 60 days before, on June 26, 2018. That is an expeditious review. When parties seek appellate review, the proceedings in the trial tribunal often stall awaiting a decision. Thus, it is beneficial when appellate courts move rapidly in such decisions.
The facts of Atlantic Sounding are reasonably simple, though the casual reader might find some terminology challenging (the court refers to the parties seeking review as "relators," rather than "petitioners"). Essentially two companies involved in a lawsuit were asked to produce documents. They resisted, claiming a privilege protected those from disclosure. This is a common situation in litigation.
Having objected to producing certain specific items, the two companies produced a "privilege log," which is simply a cataloging or listing of those documents that were not provided in response to the request. Having received that listing of what was not produced, the party that requested production filed a motion to ask the trial tribunal to compel the companies to produce those documents. That motion likely asserted that the claim of privilege was not appropriate as regards those items. Thus is framed a dispute for the trial judge to sort.
In Florida workers' compensation, the vast majority of that kind of sorting occurs based upon a motion and some response filed by the other party. Motions are the appropriate method for seeking relief, Rule 60Q6.115. That rule also allows but does not require, any other party to file a written response to such a motion. Thus, in motion and response, the parties should have capably framed the dispute for decision. It is surprising to some how often no response is filed, however. Thus, one party seeks relief and the other responds with silence. Often the silent party finds itself later disappointed with the results of its silence.
But in this Texas litigation, the trial judge convened a hearing. After that opportunity to verbally address the issues, the judge granted the plaintiff's motion to compel. The opinion makes no mention of a motion for rehearing, which is somewhat curious. With trial court decisions in Florida, it is usually appropriate to seek a rehearing before filing an appeal, Rule 60Q6.122. That is an opportunity to advise a trial tribunal of the allegation of its error and thus allow that judge to correct it. Such a process greatly reduces the volume of cases that require appellate review.
The Texas appellate court was thus asked to compel the Texas tribunal court to perform an "in-camera," essentially "in private," review of the documents that Plaintiff had asked for and which the two companies claimed were "privileged." The in-camera inspection is an opportunity for the judge to view the actual documents, not the description of them that would be appropriately found in a privilege log. The trial judge is then in a position to make decisions as to whether each such item is or is not privileged, should, or should not be produced to the requesting party.
The Atlantic Sounding companies were troubled that this trial judge had not conducted such an examination of the actual documents. In this instance, the trial judge relied upon what each party had said about the documents, in motion, response, privilege log, or argument. But, the actual documents had not been viewed.
The Court provided a review of the burden that must be satisfied to prove entitlement to mandamus relief. As it is one of the "extraordinary" writs, it requires extraordinary proof, essentially that the "trial court clearly abused its discretion," and that there is "no adequate remedy by appeal." That is logical in discovery and privilege instances like this. If the companies could only seek review by appeal, then they would have to have produced the requested documents as ordered. And, once such documents are seen, the privilege is overruled, and a later appeal might be unable to cure the resulting prejudice (once seen, the documents cannot be "unseen"). Once disclosure has occurred, it might affect the litigation in various intractable and unpredictable ways.
It is appropriate therefore for a party to object to production and assert a privilege. That claim of privilege should be specific and clear, however, identifying the privilege that is asserted. The requesting party is entitled in most instances to a privilege log that describes the withheld documents with some specificity and identifies how the privilege applies to them.
But, the Court in Atlantic Sounding explained that when
"the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege.”
Thus, in those instances, the only evidence may well be the very documents that have been requested and withheld. Thus, the appellate court held that the judge's decision should be based in such claims upon what is gleaned from those very documents. In this instance, the companies repeatedly offered to provide the documents for such a review. As such, the Court concluded that the trial judge should have conducted that private, "in-camera," inspection.
The Court therefore instructed the trial court to vacate the order compelling discovery and to review the documents in-camera before deciding to grant or deny the motion to compel. While the delay for appellate review in this instance was reasonably brief, it was also avoidable. The trial judge could have as easily reviewed those documents in June, negating the necessity of this appellate review and the delay it entailed. It is difficult to understand the purpose of denying the producing party's request for that examination.
