Document e5dnoznYgmoNODq3kM8p0bpYM

FILE NAME Philip Carey PC DATE 1989-1990 DOC PC051 DOCUMENT DESCRIPTION Legal - Plaintiff's 2nd Re uest for Production and Related Documents Including Court Order from 1990 NO 0615 SHERMAN A. SEARLS JR vs. CORNING FIBERGLAS CORPORATION ET AL . S IN THE DISTRICT COURT OF usssan usssan BRAZORIA COUNTY TEXAS usssan usssan usssan 23RD JUDICIAL DISTRICT TO PLAINTIFFS SECOND REQUEST FOR PRODUCTION CELOTEX CORPORATION and its attorney of record Ms. Elizabeth M. Thompson Butler & Binon 1600 Interstate 77002-5008 702-508 Bank Plaza 1000 Louisiana Houston . First Texas Pursuant to Rule 167 of the Texas Rules of civil Procedure the Plaintiffs request this Defendant CELOTEX CORPORATION to produce for inspection and copying by Plaintiffs attorneys in Houston Texas all documentation in possession or custody of this Defendant or subject to its control concerning the items hereinafter listed within thirty 30 days after the service of Plaintiff's Second Request for Production Notice is given to this Defendant a. that failure to comply with this request may subject this Defendant to appropriate sanctions under the Texas Rules of Civil Procedure The originaolf Plaintiff's Second Request for Production is not being filed with the District Clerk's office pursuant to the Texas Ruleosf Civil Procedure Notice is further provided this Request for Production includes any documents and records on microfilm or any other device used for copying and storage of records EXHIBIT A a The items subjects and categories covered by this Second Request for Production are as follows 1 Complete copies of Celotex's History of Insulation Products and Phillip Carey's History of Asbestos Products See Exhibit A for additional reference Respectfully submitted LAW OFFICES OF LAWRENCE MADEKSHO BY LAWRENCE MADEKSHO 8320 Gulf Freeway Suite 218 . Houston Texas 77017 713 641-0251 Bar Card No. 12797500 AND ROBERT E. BALLARD ABRAHAM WATKINS NICHOLS BALLARD ONSTAD & FRIEND 800 Commerce Street Houston Texas 77002 713 222-7211 Bar Card No. 01651000 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Request for Production has been forwarded to Ms. Elizabeth M. Thompson Butler & Binion 1600 First Interstate Bank Plaza 1000 Louisiana Houston Texas 77002-5008 and to other interested counsel on this the January Janury 14th day of . 1989 LAWRENCE MADERSHO REGAL OCPantmeny ft t 'G ' Walter corporation Jim Walter Walter corporation corporation corporation corporation wapay 22601 NORTH VALE DEPARTMENT DEPARTMENT 1978 December December 1978 Jr. Lipscomb Norvell Norvell BENCKENSTEIN BENCKENSTEIN NORVELL NORVELL BENCKENSTEIN Box 551 Esquire Beaumont Texas Asbestosis Re Beaumont Norvell Cases Dear Dear insurance insurance carriers carriers Aetna Life Casualty Casualty Kemper us Aetna you have been Kemper Insurance Company Company The advised that the above retained represent represent Celotex time Celotex Corporation information pertaining you will need need confidential and styled cases time some to these these We found found privileged privileged whichthawthich tb hise of confidential between the lawyernasture nature chance chance found Accordingly subpoenaed e form for Accordingly Accordingly be your contact information pertaining to based regarding apropriate important often preserve each you It is also It also necessary necessary necessary for me to report periodically and others eliminate status of litigation which would would eliminate you will unnecessary communication place me on list copies by the your mailing parties Orders Court and any of correspondence correspondence correspondence . any Issues memoranda or correspondence regarding cability regarding an the effectiveness of limitations limitations cacbabiilliityty upon appropriate ssuuiitt suitof statute entity often andany defense defense and an improperimproper therefore we requeensttitiyngrequesting that you you preserve . these issues are responses the of is ues appropriate responses from of the lawsuitlawsuit verybeginning of of type defenses any affidavits please are required to . contact me Enclosed herewith herewith CJICJII CIJII Enel Litigation Litigation Counsel Litigation Counsel P.S. suggested interrogatories interrogatories . suggested interrogatories Exhibit Exhibit Exhibit Exhibit Exhibit A Exhibit Exhibit Exhibit " FILE Av FEB 1 1990 NO 0615 SHERMAN A. SEARLS JR * IN THE DISTRICT es VS. CORNING ET AL * BRAZORIA COUNTY TEXAS * 23 rd JUDICIAL DISTRICT ) BP 293/4/12293/4/12 DISCOVERY ORDER Bebump ON THIS THE 14 day of 1990 came on to be heard Plaintiff's Motion to compel discovery from Defendant CELOTEX and Defendant's Motion for Protection and having considered the pleadings and motions on file the documents submitted for in camera review and the Memorandum of Authorities filed by the Master in Chancery the Court makes the following findings 1 The two documents sought by Plaintiffs Request for Production are relevant or reasonably calculated to lead to the discovery of relevant evidence in this case 2 The underlying facts documents are not privileged contained within the two 3 The privilege if any which attached to the actual documents per se which were submitted for in camera review discovery Plaintiffs Plaintiffs responses this the Plaintiffs has been responses waived through obscured responses which have effected a court and misleading fraud upon 4 This discovery is necessary in order to insure full development of the facts and issues in this case the and 5 Plaintiffs Motion to Compel should be GRANTED It is THEREFORE ORDERED ADJUDGED and DECREED that Defendant CELOTEX shall produce to the Plaintiffs through Counsel Ballard Robert Onstad E. Ballard Abraham Watkins & Friend 800 Commerce Street Nichols Houston Texas 77002-1776 copies of the two documents made the subject of Plaintiffs Motion to Compel which is hereby EXHIBIT G GRANTED and that such production shall be complete on or before 10 a.m. o'clock on the date which is 45 days from the date this ORDER is signed It is FURTHER ORDERED that nothing herein shall be ee interpreted to infringe upon nor limit the said nme Defendant's right to seek limitations upon the use of such evidence at the time of trial or to seek appropriate an! review and it is THEREFORE FURTHER ORDERED that upon Se notice to the Court that a review has been filed for before the appropriate Appellate Court then and in that event the effect of this ORDER is automatically stayed pending resolution of that review SIGNED AND ENTERED this 14 day of Reb , 1990 ss ; \ : ; > ot 3 . a4 ot \ ut. as & aa ced7) \ OaUosSuysezampeRy SHouisag Aemadi /ODLAD Aqousygsoi xay GS} aeyT L80L 2e XL Jo Ofical FIND apis Ofical Oficial AduU10RIV 29.0 . aAW 29.90 Mr. At orney Attorney & 8320 sjrady? HoustnHouston yot= panop$ue tdjenoy ene20c1 Opinion In The Court of Appeals For The First Bistrict of Texas NO 01-90-00220 CELOTEX CORPORATION Relator V. THE HONORABLE NEIL CALDWELL JUDGE OF THE 23RD DISTRICT COURT OF BRAZORIA COUNTY TEXAS Respondent Original Proceeding on Motion for Leave to File Petition for Writ of Mandamus This is an original mandamus action Celotex Corporation asks this Court to cancel an order entered by Judge Neil Caldwell on February 14 1990 which requires Celotex to produce two documents We refuse leave to file In 1988 Sherman A. Searls Jr. plaintiff in the underlying lawsuit sued Celotex and other companies alleging that he suffered asbestos diseases from exposure to defendants asbestos products During discovery plaintiff filed a request that Celotex produce two specific documents titled Celotex Insulation Products and Fhilip Carey's History of Asbestos Products In response Celotex said the documents were prepared by house counsel for Celotex These documents were provided to employees of Celotex to assist in the defense of Celotex in asbestos litigation Therefore these documents are privileged pursuant to the attorneyclient privilege and work product set out in TEX R. Civ EVID 166b Attached to its response Celotex filed an affidavit of its attorney The two documents were prepared by an attorney representing Celotex utilizing information obtained from retired employees of Celotex in order to assist in the defense of Celotex in asbestos litigation These documents were prepared solely for the use of Celotex's attorneys in this type of litigation and are therefore privilege protected by the attorney attorney work product as well as the Plaintiff filed a motion to compel production on the grounds that Celotex's answer to the request for production was inconsistent with its answers to interrogatories Celotex then filed a motion for protection again stating that its attorney prepared the documents to aid in the defense of the asbestos litigation Judge Caldwell appointed a master to review plaintiff's discovery request and Celotex's claims of privilege The master filed a proposed order with a memorandum stating the reasons for her recommendations Judge Caldwell adopted the master's report and signed the order she proposed The court's order contained the following relevant findings 1 The facts in the documents are not privileged and 2 if privileged Celotex waived the privilege through obscure and misleading discovery responses which effected a fraud upon plaintiff and the court Celotex filed this application for leave to file a mandamus asserting that the attorney work product exemption and the attorney privilege protect the two documents from discovery I. Mandamus review of discovery orders The trial court has great latitude to order or deny discovery Ginsberg v Fifth Court of Appeals 686 S.W.2d 105 108 Tex 1985 We will not set aside a trial court's discovery order unless it is clear the trial court abused its discretion Id Victoria Lloyds Ins Co. v Gayle 717 S.W.2d 166 167 Tex.App 1st Dist 1986 orig proceeding A trial court abuses its discretion when it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of Johnson v Fourth Court of Appeals 700 S.W.2d 916 917 Tex.1985 BorBinogring & Tunneling Co. v Salazar No. 01-89-00868 Tex.App 1st Dist Nov. 30 1989 orig proceeding yet reported The party who attacks the trial court's discretionary ruling must show that the facts and the law do not permit the trial court to make the decision it made Tun&nTe unnleli ingnCg o. No. 01-89-00868 slip op at 3. We will not issue a mandamus to direct the trial court in its discretionary rulings Johnson 700 S.W.2d at 917 The courts will recognize only those privileges that are in the Texas Constitution statutes rules of evidence or other rules prescribed by the supreme court TEX.R.CIV.EVID 501. Article V of the Texas Rules of Civil Evidence lists many of those privileges The Rules of Civil Procedure list certain privileged documents that are exempt from discovery TEX.R.CIV.P. 166b The party who wants to limit discovery by claiming a privilege must allege and prove the privilege applies to the document the party wants to protect Jordan v Fourth Court of Appeals 701 S.W.2d 644 648-49 Tex 1985 Boring & Tunneling Co. No. 01-89-00868 slip op at 4 We must determine whether Celotex has proved that it was entitled to the privileges it claims II Attorney privilege Celotex first claims the documents are immune from discovery under the attorney privilege TEX.R.CIV.EVID 503. In order for Celotex to successfully claim that the documents are protected by the attorney privilege Celotex must allege and prove 1 the documents are confidential communications 2 the communications were between an attorney and a Celotex representative 3 the communications were made to help provide legal services to Celotex See TEX.R.CIV.EVID 503 & b Not all communications between a client and its attorney are privileged Tun&nTe unnleli ingnCg o. No. 01-89-00868 slip op at 9 A. Confidential communications Celotex made no assertion and presented no evidence that the two documents are confidential communications The affidavit of Celotex's attorney does not assert that the documents are confidential Without proof that the documents are confidential Celotex cannot assert the attorney privilege See Giffin v Smith 688 S.W.2d 112 114 Tex.1985 B. Communications between client and attorney Only communications between a corporate client's representative and the corporation's attorney are protected by the attorney privilege A representative of a client is one having authority to obtain professional legal services or to act on advice rendered pursuant thereto on behalf of the client Tex R. Civ Evid 503 When a corporation asserts the attorney privilege to prevent discovery of a communication between its attorney and an employee the corporation must prove that when the communication was made the employee had authority to obtain legal services on behalf of the corporation or to act on the advice rendered pursuant thereto on behalf of the client Department of Mental Health v Davis 775 S.W.2d 467 473 Tex.App 1989 orig proceeding Tex.R.Civ.Evid 503 According to the affidavit an house attorney for Celotex prepared the documents using information from retired employees and various corporate documents There are no allegations or proof that the retired employees were representatives of Celotex seeking professional legal services on its behalf C. Communications for legal services The purpose of the attorney privilege is to promote unrestrained communication between an attorney and client in legal matters without fear that the confidential communications will be disclosed by the attorney in any legal proceeding West Solito 563 S.W.2d 240 245 Tex 1978 see also Boring & Tunneling Co. No. 01-89-00868 slip op at 9. The privilege applies beyond litigation in one specific suit Maryland Am Gen. Ins Co. v Blackmon 639 S.W.2d 455 458 Tex 1982 Here Celotex has made the barest of claims that the communications between its house counsel and retired employees were made for the purpose of rendering legal services Because Celotex did not prove that the communications were confidential and were made by and between its agents we find that Celotex did not allege or prove that the two documents are protected by the attorney privilege III Work product Celotex next claims immunity from discovery under the attorney work product privilege set out in TEX R. Civ EVID 166 The focus of Celotex's argument is that its employees prepared the two documents in anticipation of litigation Celotex seems to be invoking the party communications privilege instead of the work product privilege under 166 Rule 166b TEX.R.Civ.P. provides Exemptions The following matters are protected from disclosure by privilege a Work product The work product of an attorney subject to the exceptions of Texas Rule of Civil Evidence 503 which shall govern as to work product as well as to attorney privilege d Party Communications ... when made subsequent to the occurrence or transaction upon which the suit is based and in anticipation of the prosecution or defense of the claims made a part of the pending litigation Rule 166b contains two requirements 1 the document must have been prepared after the transaction upon which the suit is based and 2 it must have been prepared in anticipation of the prosecution or defense of the claims made a part of the pending litigation Celotex made no assertion and presented no evidence that the two documents were prepared in anticipation of the underlying litigation Celotex does not dispute that it compiled A History of Philip Carey Asbestos Products in 1978 and 1 There is much confusion about the attorney privilege under TEX.R.CIV.EVID 503 and the attorney work product exemption under TEX.R.CIV.P. 166 Most cases seem to treat the attorney work product exemption having the same requirements as TEX.R.CIV.P. 166 We can find no explanation for reading the requirements of TEX.R.Civ.P. 166 into a claim for exemption under TEX.R.CIV.P. 166 For that reason we consider Celotex's claim of exemption as made under TEX.R.Civ.P. 166 The very nature of mandamus relief which requires expedited consideration often precludes serious analysis of seeming inconsistencies in case law -6- revised it in 1980 and 1984 that it created Celotex Insulation Products sometime before 1984 and revised it in 1984 and that plaintiff filed this lawsuit in 1988 Celotex argues that it compiled the documents to aid its defense in asbestos related litigation It does not contend that it developed the documents for a defense in plaintiff's suit According to Celotex plaintiff's third amended petition admits that Celotex had reason to believe as early as 1973 that many allegations and lawsuits would be brought against it The Texas Supreme Court has developed a prong test for determining whether there is good cause to believe a suit will be filed Flores v Fourth Court of Appeals 777 S.W.2d 38 40-41 Tex 1989 Boring & Tunneling Co. slip op at 4. First the court must make an objective examination of the facts surrounding the investigation to determine if litigation was imminent Flores Fourth Court of Appeals 777 S.W.2d at 40-41 Second the court must examine the subjective intent of the party opposing discovery to see if it had a good faith belief that litigation would ensue Flores 777 S.W.2d at 41 Boring & Tunneling Co. 01-89- 00868 slip op at 4-5 1. The objective test Under the first prong we examine the facts surrounding the investigation to determine if litigation was imminent The affidavit of Celotex's attorney the only evidence of the attorney privilege tells us nothing about the preparation of the two documents For example we cannot tell from the attorney's affidavit if Celotex had received a demand letter from plaintiff before it prepared the documents See e.g. Tun&nTe unnleli ingnCg o. No. 01-89-00868 slip op at 5 Foster v Heard 757 S.W.2d 464 Tex.App 1st Dist 1988 orig proceeding 2. The subjective test Under the second prong we examine Celotex's subjective intent to see if it had a good faith belief that litigation would ensue Again we have no allegations or proof that Celotex had reason to believe litigation would ensue Celotex did not meet its burden to prove the two documents were prepared after the transaction upon which plaintiff filed suit or that they were prepared in anticipation of the defense of the plaintiff's claims See Victoria Lloyds Ins Co. v Gayle 717 S.W.2d 166 167 Tex.App 1st Dist 1986 orig proceeding IV Abuse of the discovery process The trial court made a finding that even if the documents were privileged Celotex waived the privilege through obscure and misleading discovery responses The trial court held that the misleading answers to discovery were a fraud upon plaintiff and the court We have no authority in a mandamus proceeding to make fact findings Jampole v Touchy 673 S.W.2d 569 575 Tex 1984 West 563 S.W.2d at 245. If the parties presented conflicting evidence on the issue of misleading and inconsistent answers to discovery we must deem the decision of the trial court conclusive Boring & Tunneling Co. v Salazar No. 01-89-00868 slip op at 10 Cameron County v Hinojosa 760 S.W.2d 742 Tex.App Christi 1988 orig proceeding The trial court's finding that Celotex waived any privilege through obscure and misleading discovery responses alone will justify our refusal to grant leave to file this application for mandamus Accordingly we overrule the motion for leave to file the petition for writ of mandamus s Michol O'Connor Michol O'Connor Justice Justices Bass and Hughes also participating Do not publish Tex R. App P. 90.Judgment rendered and opinion delivered 3-29-90 True Copy Attest etn Cry Kathryn Cox Clerk of Court ATTORNEYS AT LAW PROFESSIONAL CORPORATIONS BUTLER & BINION 1600 FIRST INTERSTATE BANK PLAZA 1000 LOUISIANA HOUSTON TEXAS 77002-5008 (713)237-3111 (713)237-3111 TELEX 775532 WU 3787815 FNET TELECOPIER 237-3201 237-3202 March 29 29 , 1990 1990 3200 NCNB CENTER TOWER | 75201 DAL2L1A4S TEXAS 220-3100 1747 PENNSYLVANIA AVENUE N W WASHINGTON DC DC 20006 202 466-6900 Ms. Carolyn Johnson The Johnson Law Firm 5000 Caroline Houston Texas 77004 Re No. 01-90-0219 Celotex Corporation v The Honorable Neil Caldwell In the Court of Appeals for the First Supreme Judicial District of Texas at Houston Texas Dear Ms. Johnson In confirmation of our telephone conversation pursuant to the Court's Discovery order Celotex will have a reasonable time at a minimum the fifteen day time period provided for filing a Motion for Rehearing before the Court of Appeals in which to file its Motion for Leave to File Petition for Writ of Mandamus and its Petition for Writ of Mandamus before the Texas Supreme Court You have told me that during this time period and until all appeals are exhausted before the Supreme Court the necessity for producing documents in compliance with the Court's Discovery Order is stayed As you know the First Court of Appeals denied Celotex's Motion for Leave to File its Petition for Writ of Mandamus late yesterday afternoon Thank you for your kind attention to these matters Sincerely Gerber Marsha Marsha Marsha Z. Gerber MZGE Johnson ltr cc The Honorable Neil Caldwell District Judge 23rd Judicial District Court Brazoria County Courthouse 400 North Velasco Angleton Texas 77515 All Counsel of Record Supreme Supreme Supreme Supreme Court Austin , Texas AustinJohnJohnAustin T. AdamsAdamsAdams AdamsAdams 78711 7871 7871 Clerk Clerk Clerk Clerk Ms. Elizaboth Elizaboth Elizaboth Elizaboth Binion Elizaboth Butler Butler Elizaboth Elizaboth M.M. Binion ThompTshonmpsonThompTsohnompsTohonmpson & Elizaboth Binion 1600 First First ButlerButler 160 Louisan 1000 Louisiana Louisiana Louisiana Interstate InterstaItenterstatIneterstate Interstate InterstatIenterstaItnterstate HoustonHouston TX Louisan 7 0 2 HoustonHouston Houston Houston TX 77002 7700277002 Thompson Bank Bank Plaza Plaza Plaza Plaza Plaza April April April April April 25 25 , 100 1000 McMc Marcha Marcha Marcha I. Gorbor GorborGorbGorborGorbor Butlor Butlor & Butlor Binon Binon First Butlor160 160 160 LouisianaLouisan Binion Binion InterStae InterStaeInterState InterState InterState InterState InterState InterState InterState Louisiana Houston HoustonHouston HoustonHoustoHonustonHouston TX TX 77002 77002 770072 700277002 Mr. J. Greg Dow Dow Dow Butler Greg Butler Binion Butler160 First First 1600 First First First Houston 160 7 0 2 7 0 2 7 0 27 0 2 Houston Houston Houston HoustonHouston TTX X Binion Binion Interstate Interstate InterstatIenterstatIenterstate Interstate 77002 Bank Bank Plaza Plaza Plaza Plaza Plaza Bank Bank Plaza Plaza Plaza Plaza Plaza Mr.Mr. Robert , Nichols AbrahamAbrahamAbrahamAbraham Abraham Robert Robert E. BallarBadllard Watkins WatkiWnastkins Watkins Nichols Nichols Nichols , BallaBradllardBalard BallardBallarBdallard Robert Watkins Onstad Onstad Friend Onstad Comerce Comerce Houston Comerc Comerc Watkins Houston 702 Stret 702 Houston Houston TX 77002 StreeSttreSettreet Mr. Lawrence Lawrence Madoksho Madoksho Madoksho Madoksho Madoksho 8320 8320 GulGfulf Gulf FrewayFreway Freeway 8320 8320 Freway Houston Houston TX 77708777087 087 77087 Suite Suite Suite #218 218 218 Edward Mr. Mr. Wiliams Fowler Bailey BaileyBailey Bailey and 901 901 Bailey Bailey 752017520175201Wilams DallasDallas Dalas EdwardEdward Edward FowlerFowlerFowlFerowler , and WiliamWsilliams Williams Williams Main Street SuiteSuite Suite SuitSeuite , TTX X 75201 Jr. 3500 350305030500 Ronald Ronald Ronald Ronald G.G. Bankston Bankston BanksBtaonkston McDowell Bankston Bankston BankstonBankston Bankston McDowelMcDowell & Stanloy BankstoBnakston Gulf Tower Tower Tower Tower 1301 McKiney McKinney 1301 McKin ey McKinney Bankston McKiney 70107010 Houston Houston Houston TX 77010 7010 77010 Stanloy Stanloy StanloyStanloy 5847Boan5847Jack&Jack B. FelipeManing Mr.Mr. Jack Man ing Manning Manning Manning Maning Manning Manning Manning San 5847 San Felipe Felipe 7057 7057 Felipe , SuiteSuite Suite SuitSeuite HoustoHnouston Houston Houston HoustHouostnon TX TX 77057 77057 1500 1500 15001500 Gary & Gary Gary Gary Blundhund DuHayPlazaPlazaPlaza North North Mr.600 NorthNorthNorthBlundh Pearl Pearl7501 DalaDala El iston Eliston Elliston Elliston Elliston Elliston Blundhund Blundhund ElistonEliston the Americas Americas Americas Americas Americas Stroot Stroot Stro t Stroot Stroot 7570175701 SuitSuoitoSuito Suito Suito 2500 2500 2500 L8201 L8201 L820L18201 L8201 fo STYLECase CELUTEX CELUTEX CELUTEX 0-9734 CORP TOM TOM STYLE STYLE STYLE STYLE Case Case Case NoNoNo 0-9734 0-9734 0-9734 0-9734 CELUTEX CELUTEX CORP CELUTEX CORP CORP a HONORAH HONORAHHONORAH HONORAH ! TOM - at oa mh ~ 2 =. Adams Adams Adams Rospectfully yours John T. Adams Clerk CC CC By Doputy Doputy Doputy QIZ# Tea baad atns aa td oysapeN AemargL80L ot XL Ld souersy FIND Uo *4W OZES 3snoH sRxap, NOLVIS jo TIL jaop TO.LKIVD L82 SVX#LE nuadng st7z7t NELSOV xOd Od aiyp,