Document zbkV9vDLBJ6b8bYqakajLmE66

BRADLEY & MERRELL c/0 JONES, JONES, CLOSE & BROWN, CHAR ERED Seventh Floor -- Bank of America!Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 MESSAGE FROM XEROX 7024: f702^ 385-1655 DATE: 3 ' - 9 3 _______j _ TO: Bill Snyder FAX #: (615) 791-6567 PHONE #: (615) 791-6625 FROM: A L ^ / 'fTfe.rre./l CLIENT/MATTER: Nevada Power/Monsanto CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: df- Q 'e~n'rh r'ft QjeZ! a ? / " k j NUMBER OF PAGES (including cover page): MESSAGE: <2 THIS TELECOPY IS INTENDED ONLY P0R THE ADDRESSEE NAMED ABOVE. IT MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL IF YOU HAVE RECEIVED THE TELECOPY IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, DESTROY ALL COPIES, AND DO NOT DISSEMINATETHE INFORMATION TO ANYONE THANK YOU FOR YOUR ASSISTANCE IF YOU EXPERIENCE PROBLEMS WITH THIS fRANSMISSION, please call (702) 385-4202 and ask for: Robert Osterloh, Ext. 615 BRADLEY * MERRELL ID:?023851655 TR FlN SM IT CONFIRM ATION REPORT NO. RECEIVER TRANSMIT' :r DATE DURATION MODE PAGES RESULT 018 615 731 656|7 BRADLEY * MERRELL 1 FEB -2-4-33 17 =4;3 14'33 STD | 20 OK ! i iE I I I f EI i l I I IlII f FEB 24 '93 17 =43 I I I BRADLEY & MERRELL C/O JONES, JONES, CLOSE & BROWN, ZHAW ERED Seventh Floor -- Banlc of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101-60 26 (702) 385-4202 MESSAGE FROM XEROX 7024: (7021 385-11 355 DATE: d ~ 3 / - <73 TO: David McCrea, Esq. FAX #: (812) 336-5307 PHONE #: (812) 336-4840 FROM: y iry // ; CLIENT/MATTER: Nevada Power/Monsanto CLIENT/MATTER NO.: 11927.2 - -, r /^ & n i - r y dt*2 > A * -u ./f- 3 - ^ i / n s f - u J S c NUMBER OF PAGES (including cover page): MESSAGE: 0 THIS TELECOPY IS INTENDED ONLY FOR THE ADDRESSEE NAMED ABOVE PT MAY CONTAIN INFORMATION THAT IS PRIVILEGEDAND CONFIDENTIAL IF YOU HAVE RECEIVED THE TELECOPY IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, DESTROYALL COPIES, AND DO NOT DISSEMINATETHE INFORMATION TO ANYONE THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: Robert Osterloh, Ext. 615 BRRDLFY * MERRELL I D :7023851655 TR A N SM IT CONFIRM ATION REPORT NO. RECEIVER TRANSMITTER DATE DURATION MODE PAGES ^ RESULT 010 | S12 336 530|7 BRADLEY * MERRELL FEB -24-93 17:05 14 '59 STD 20 I OK FEB 24 '93 17:05 fii i s a /z 'd NO. D-33B5 IN THE SUPREME COURT OF TEXAS WESTINGHOUSE ELECTRIC CORPORATION lelaior, V, THE HONORABLE PAUL DAVIS, JR., 200th DISTRICT COURT TRAVIS COUNTY, TEXAS Respondent. REPLY TO PETITION FOR WRIT OF MANDAMUS BARON & BUDD, P.C. 3102 Oak Lawn AVeroie Suite 1100 j Dallasl T e u i 75219-4281 (214) 521-3605 (214) 320-118 (Facsimile) BRENT M. ROSENTHAL State Bar No. 17281073 RUSSELL W.JBUDD State Bar No. 03312400 C. ANDREW] WATERS State Bar No.20911450 Attorneys For Real Parties In Interest xi'stmua * aans s nohs p :sq eg, pz bzj NO. D-3383 IN THE SUPREME COURT OF TEXAS 1 1 WESTINGHOUSE ELECTRIC CORPORATION Relator, V. THE HONORABLE PAUL DAVIS. JR.. 200th DISTRICT COURT TRAVIS COUNTY, TEXAS Respondent. REPLY TO PETITION FOR WRIT OF MANDAMUS TO THE SUPREME COURT OF TEXAS: COMES NOW PETER M. DASHKO, plaintiff in the ease of Dashko v. Fibreboard Cam., Wtstinghouse Coip., ft ai. , No. 91-14798, in the 331st Judicial District Court of Dallas I' I County* Texas* real party in interest to this proceeding, and on behalf of the Honorable Paul R. Davis, Jr. ,respondent, files this reply to the petition for writ of mandamus as directed by the Honorable Thomas R. Phillips in his order of February 10,1993. S S /8 `d >a'stmyd * aans s woaus bp-.bq es, pe S3j STATEMENT OE FACTS AND PROCEDURAL HISTORY Real party in interest Peter M, Dashko (hereinafter referred1!to "plai1ntiff") is the plaintiff in a wrongful death case in which he claims that the death of his decedent, Steven Douglas, was caused by his exposure to the asbestos-containing products of relator Westinghouse Electric Corporation ("Westinghouse") and others. Plaintiff alleges that Westing! ouse Is liable for the death of his decedent under various product liability theories, including strict liability, negligence, and gross negligence. Westinghouse is apparently a defendant in thousands of similar cases across the country, and has been a defendant in asbestos litigation since at least 1987. SOF 69. Prior to trial, Westinghouse invited plaintiff to participate in a document production hosted at Westinghouse's headquarters in `Pittsburgh, Pennsylvania. The production was scheduled to satisfy the discovery requests of plaintiffi in Mlsslssi Dpi and Sortii Carolina cases; Westinghouse sought to bind Texas plaintiffs represented by Baron & Budd to the results of the document production as well. Plaintiffs counsel agreed to participate in the document production on behalf of his Texas clients. SOF, Plaintiffs Exhibit 8. The document production was arranged by the firm of McGuire, Woods, Battle & Boothe o f Richmond, Virginia, Westinghouse's national counsel. The day before the production* Maureen Matsen, a lawyer with McGuire, Woods sent by telecopier a copy of a letter that she had previously sent to Ms, Susan Niai of the firm of Ness, Motley, Loadholt, Richardson, and Poole of Barnwell, South Carolina, counsel for the Mississippi plaintiffs, SOF 120-123. The letter to Ms. Niai stated that "inadvertant product of documents protected by the attorney-client privilege or work-product doctrine is not intended as a waiver of the privilege/ SOF Plaintiffs Exhibit 9. However. b> Zspmd xi'stmya * aans s Kioaue eb:80 es, pe sbj the time his office received the fax from Ms. Matson, plaintiffs counsel) had already left his office to participate in the document production in Pittsburgh. S O F 124. He'did not see the letter from Ms. Matson to Ms. Niai until after he returned from the document production. SOF 138. More importantly, plaintiffs counsel never agreed in any fashion to the proviso contained in Ms. Matson's letter to Ms. Niai, and certainly did not do so in writing as required by Rule U of the Texas Rules of Civil Procedure. SOF 128 Prior to producing the documents for inspection by plaintiffs's counsel, Westinghouse had reviewed the documents to determine if any legal privilege would attach' to shield them from discovery. Westinghouse determined that roughly a thousand of the documents were in fact privileged, and removed them from production, replacing them with sheets of paper bearing the notation "privileged claimed" along with a brief description of the document. SOF 24. The Memoranda involved in this proceeding, plaintiffs Exhibits 1 and 3 attached to the Statement of Facts, were not removed from production; on the contrary, hey were made available for inspection by plaintiffs counsel, along with thousands of other documents.! Following Inspection of ail the documents produced by Westinghouse, plaintiffs counsel identified plaintiffs Exhibit 1 (the "smoking gun memorandum," referred to by Westinghouse in its jjctition benignly as the "draft memorandum") and plaintiffs Exhibit S as documents a be copied and provided to plaintiffs counsel, Westinghouse accepted this request, photocopied the documents, and sent them to their national counsel, McGuire, Woods, in Richmond, McGuire, Woods then "baiesstamped" the documents, stamped them with the notation "In re Abremsi" and forwarded them to plaintiffs counsel. S S /S *d xi'strraa * cans ? nohue si?:so es* P2 fna About a week after producing the copies to plaintiffs' counsel, Westinghouse began efforts to retrieve the documents that It now asserts it inadvertantly produced, including the "smoking gun memorandum." Westinghouse asserted that the documents were protected from discovery by the attorney-client privilege. Plaintiffs counsel opposed these efforts, believing (1) that the documents were not attorney-client communications within the meaning of Tex.R.Civ.Evid. 503(b), because they contained not legitimate pro essiona counsel but unethical advice promoting the perpetration of a fraud; (2) that even if the documents did contain attorney client communications within the meaning of Tex.R.Civ.Evid. 503(b), the communications were made in order "to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud," Tex.R.Civ,Evid. 503(b)(1), and thus were not protected from disclosure by the attorney-client privilege; and (3) that any privilege attaching to the documents had been waived by voluntary disclosure of the documents by Westinghouse. Plaintiffs agreed, though, not to disseminate the documents until the Honorable David Brooks, Judge of the 191st Judicial District in and for Dallas County, Texas, determined the "privilege issue." SOF, Defendant's Exhibit 1. Judge Brooks, however, recused himself from ruling on matters !I involving Westinghouse. Since Judge Brooks did not rule on| the iu|ua, plaintiffs counsel consented to extend the agreement until after a ruling by Judge Davis. Plaintiffs counsel i| expressly dtclintd to agree not to disseminate the documents until the disposition of any appeals o f writs of tnwivittrtiii occasioned by an order on the issue of privilege. SOF, Defendant's Exhibit 1. t On February 8, 1993, Judge Davis conducted a five-hour evidentiary hearing on th^ "privilege issu e/ Westinghouse introduced the testimony of four live witnesses, attempting w 2 / 9 'd x i's tm y a * aans s nohos b s :80 e6, vz e3j I show that the documents that it had inadvertently produced were protected from discovery and inadmissible at trial, After carefully considering the evidence and the legal standard announced by this Court for deciding claims of privilege and waiver, Judge Davis ruled that the documents were discoverable for two reasons: (1) the documents fell within the "crime-fraud exception" to the attorney-client privilege; and (2) Westinghouse had voluntarily waived any privilege attaching to the documents by voluntarily producing them to plaintiffs counsel, SOF 155-57. Judge Davis this denied Westinghouse's Motion for Protective Order and Motion for Order Preventing Dissemination of Confidential Information. He also denied Westinghouse's request !I i |that his order be stayed pending Westinghouse's application for writ of mandamus. The Austin Court of Appeals denied Westinghouse's motion for leave to file a petition for writ o f mandamus from Judge Davis' otdr. Westinghouse then sought relief in this Court. ARGUMl aM I, JUDGE DAVES DID NOT COMMIT A CLEAR ABUSE OF DISCRETION IN ALLOWING PLAINTIFF TO RETAIN THE DOCUMENTS AND USE THEM AT TRIAL. A. Judge Davis Did Not Abuse His Discretion in finding That By Voluntarily Disclosing the Documenta to Plaintiff^ Westinghouse Waived Its Claim That the Documents Are Privileged. j I After the five-hour evidentiary hearing on the issue of whether the documents were I covered by the attomey/clkm privilege and therefore immune from discovery and inadmissible at trial. Judge Davis found "that Westinghouse has in fact waived this jprivilege. " SOF 156. Judge Davis based his ruling on the standards for determining waiver announced in this Court's recent opinion in Granada Corp< v. Honorable First Court of ^Appeals] 36 Tex.Sup.Ct.J. 350 S 2/'d x i 's u n u a * a a n s s Kioaua 0S :80 6 6 / P2 S3J I (Dec, 16, 1992), and on his review of the evidence on the issue of wa: ver presented atjthe hearing, Judge Davis concluded, . . . I cannot find and do not believe that the evidence sustains a finding that the disclosure was compelled erroneously, and Id o not find that the evidence supports-that the disclosure was1 made without an opportunity to claim the privilege. 1 There is certainly not any claim that the plaintiffs made the defendant or that any court made the defendant disclose this document, so to that extent it was voluntary. | I It does seem to the Court as if it were an accident that this document was included, but 1 cannot find that thej disclosure was an involuntary one, and accordingly I have made my ruling. SOF 157. Unquestionably, Judge Davis did not abuse his discretion in interpreting the evidence of waiver presented at the hearing and in applying the standards of the Granada opinion in finding that Westinghouse had waived any privilege attached to the documents. 1. The Disclosure of the Documents, Though Perhaps Inadvertent* Was Net Involuntary. Under Rule 511 of die Texas Rules of Civil Evidence* a party waives a privilege against disclosure of evidence if the party "voluntarily discloses or consents to disclosure of any significant pan of the privileged matter." Tex.R.Civ.Evid, 511. Rule 512 provides an exception to this rule of waiver; disclosure of privileged evidence does not waive a privilege if the disclosure was "(1) compelled erroneously or (2) made without opportunity to claim the privilege." Tex.ILCiv.Evid. 512. Under Granada, chough, a party seeking to preserve a privilege after disclosure must do more than 9how inadvertence; nther, the producing party has I the burden of justifying preservation of the privilege by showing that the circumstances 2/8'd xi'stmba * aans $ NOdbS 12:80 e s rf ^5 FTH demonstrate the mvolumariness of the disclosure." Granada, 36 Tex.Sup.Ct.J. at 3S2, Judge Davis did not abuse his discretion in finding that Wcstinghouse had failed to carry Its burden. Granada, like the instant case, involved a huge document production. The defendant in Granada made 150,000 pages of documents available for inspection by plaintiffs1counsel. 36 Tex.Sup.Ct.J, at 350. As in the instant case, the plaintiffs in Granada designated a large number1of documents for photocopying and production, including the four contested documents that the defendant would later claim were privileged. The defendant refused to produce 104 documents, including the four contested documents, but, for unknown reasons, inadvertently included the four contested documents with the unprivileged documents provided to plaintiffs* counsel. Defendant's counsel did not learn of the inadvertent production until plaintiffs* counsel attempted to use the contested documents at a deposition. Id. at 351. The defendant moved for a protective order three weeks after the deposition and some eleven months after the inadvertent disclosure, seeking return of the documents. Id. The trial court granted the protective order, but the court of appeals reversed on a writ of mandamus. Id, The Texas Supreme Court affirmed the order of the court of appeals holding that the defendant had waived any privilege attaching to the documents. The court noted, Inadvertent production is distinguishable from in involuntary production. A party who permits access to unscreened documents may, do to inattention, unwittingly-but none the l t voluntarilydisclose a privilege document, lThe plaintiffs in Granada designated 18,000 documents for photocopying and production, compared with 38,000 pages of documents in the instant care. It must be recalled, however, that the Westinghouse production was intended to satisfy discovery requests in multiple jurisdictions, not just one jurisdiction as in Granada, The large number of documents that Westinghouse was required to photocopy could not possibly have come as any surprise to Westinghouse or its counsel. | 3 / 6 'd xi'stmya * aans s NOHS T:80 E6* VZ OE3J Id. at 352. Focusing on the defendant's opportunities to withhold the document before disclosure, and not on the defendant's delay in discovering the disclolure as suggested by Westinghouse in its petition, the court set forth the basis for its holding in terms strikingly applicable in the case at bar. Here, It is relevant that Granada did not avail itself of opportunities to prevent disclosure of memoranda,! although it had many. The memoranda were not segregated out In Granada's initial review of the documents opened to Freeman, nor were they detected when Freeman notified Granada of its designations for photocopying or when the copies were sent to jGranada before distribution to Freeman. Granada had the opportunity to inventory the documents at many points before production. . . Granada's conclusory assertion that the disclosure was inadvertent and therefore involuntary offers no circumstantial justification for the disclosure. Id, at 352 (emphasis added). Similarly, in the instant case, Westinghouse failed to avail itself of multiple opportunities to prevent disclosure. As h Granada, the memoranda in question were not segregated from the documents made available for inspection to plaintiffs' counsel. As in Granada, the defendant had an opportunity to ascertain the privileged nature of the documents when plaintiffs counsel requested that the documents be photocopied! Unlike Granada, the documents were actually transferred from the party itself to the party's national counsel for a !1 final privilege review before the documents were actually transmitted to plaintifft.**S aMs. Matsen, an attorney for Weatlnghousc, testified that McGuire, Woods was able to review only about half of the requested documents for privilege; it could not complete a review o f all the documents, Ms. Matsen and her counsel suggested, because of the Thanksgiving Holiday. S O F 130-133; 35. Whether or not Ms. Matsen's self-interested testimony is credited, however, the failure of McGuire, Woods to review all documents for privilege is certainly no fault o f plaintiffs. S S S /0 T "d Xi'stmya * aane ? nomuh 2:80 6/ PS 8 3 J Westinghouso has gone to great lengths in its petition, as it did at the hearing, to suggest that is was under some type of unreasonable time constraint in making the documents available for inspection and in copying the documents, and that this constraint rendered disclosure of the documents involuntary. Westinghouse's suggestion i3 unsupported by the record, was implicitly rejected by Judge Davis, and should be rejected hero, Although Westinghouse suggests that it was forced to assemble "several hundred thousand pages of documents" in a "short time span" in order to accommodate a "looming trial date in Mississippi and a December 1, 1992 Motion to Compel Deadline,'0 Westinghouse's petition at 14, the record contains no court order compelling Westinghouse to adhere to its self-imposed discovery schedule. More obviously, the record contains absolutely no evidence that Westinghouse had inadequate opportunity to screen its documents for privilege prior to disclosure. Westinghouse's cries of duress are all the more ironic when one considers that Westinghouse gave plaintiffs counsel a total of twodays in which to review the many hundreds of thousands of documents that Westinghouse made available for inspection. SOF, Plaintiffs Exhibit 9, Westinghouse certainly believed that the limited time iI given to plaintiffs for review of the Westinghouse documents provided plaintiffs with an adequate opportunity to analyze the documents and malts reasoned judgments about their significance to the litigation-and plaintiffs, unlike Westinghouse, had no second or third chances. Westinghouse had an exponentially greater opportunity to screen Its documents than had plaintiffs, and Westinghouse's suggestion to the contrary is simply ludicrous.3* 3Westinghou$e does not explain what a "motion to compel deadline" is. A pam * motion, without an order granting it, does not compel the opponent to do anything. SZ/IT *d xi'Sbmtfa * aana $ ooaya E:80 E6, P2 83J As in Granada, Westinghouse "has failed to sustain its burden of establishing that its I. disclosure of the documents was involuntary." Granada, 36 Tcx.Sup.Ct at 352*53. Clearly. Judge Davis did not abuse his discretion in construing the facts 1 indicate that the dislcosure was not involuntary, Therefore, any privilege that might have existed as J these documents was waived upon the voluntary disclosure, B. P laintiffs Counsel Did Not Agree That Westinghouse V^ould Be Allowed To Assert Discovery Privileges After Disclosure. Westinghouse suggests that it did not waive the attorneys lient privilege allegedly attaching to plaintiffs Exhibits 1 and 5 because Westinghouse jhad unilaterally declared that inadvertent disclosure of privileged documents would not waive any privileges. See Plaintiff's Exhibit 9. Unfortunately for Westinghouse, this declaration was not made part of any discovery I agreement with counsel for plaintiff. Counsel for plaintiff did not even see this "condition" on IJ production until after he had returned from the document inspection in Pittsburgh;4 even then, If he did not agree to this condition. SQF at 124. Most importantly, plaintiffs counsel did not agree to Westinghouse's sweeping attempt to sidestep the law of waiver in writing, as required by Rule 11 of the Texas Rules o f Civil Procedure. In Freeman v. Bianchi, 820 S.W,2d 853 (Tex.App. Houston [1st Dist.] 1991), the defendant, like Westinghouse here, attempted to revive a claim o f privilege after disclosure, based on an alleged agreement among counsel to reserve objections based on privilege even with*10 4Westinghouse disingenously notes that plaintiffs counsel, Andy Waters, testified that "he read the October 26 letter {containing the non-waiver proviso] when he received the October 28 letter. " Westinghouse1s Petition at 5. Westinghouse omits the crucial fact that Mr. Waters did not read the October 28 letter until after he returned from the document inspection. SOP 138. 10 S3/3T`d xi'suTTcr * aorta %uowo. S:80 6/ PE E H respect to documents that had been disclosed. 820 5.W,2d at 859. The court rebuffed the defendant's attempt, because the alleged agreement had not been signed and filed with the court in accordance with Tex.R.Civ.P. 11. Thus, the court concluded, any agIreements reached by the parties are unable to support the defendants' claims of privilege and cannot be utilized to demonstate that disclosure of the documents to plaintiffs did not constitute waiver." 820 S.W.2d at 860. A similar situation obtains here. Neither plaintiffs counsel in the' instant case, nor any other plaintiffs' counsel, agreed in writing to the conditions set forth in Ms. Matsen's letter. Nor was the letter filed with the court as required by Tex.R.Civ.P. 11. Ms. Matsen's tetter was simply ineffective to preserve Westinghouse's claim of privilege on documents that it voluntarily disclosed in discovery. B. Judge Davis Did Not Abuse His Discretion in Ruling That the Documents Fall Within the "Crime-Fraud Exception" to the Attorney-Client Privilege. Rule 503 of the Texas Rules of Civil Evidence provides that neither attorney work product nor attorney-client communications are privileged . j [i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud." TexiR.Civ.Evid. 503(d)(1). The crime fraud exception applies "if a prima facie case is made of contemplated fraud.n See Granada, 36 Tex.Sup.Ct. J. at 353 (emphasis added). The documents iiemselves may provide the necessary evidence that fraud was being contemplated. Freeman y. Biancfti, 820 S.W.2d IJ 853,862 (Tex. App.-Houston [1st Disc.] 1992). Upon reviewing the documents in question and i .i evaluating the testimony of the witnesses at the hearing, Judge Davis found "that the document1 S 2 / * d 11 / xi'su-na * aana s woatia t^:89 e s, vz a u was prepared and the document describes a plan to commit fraud on the courts of this nation by Westinghouse/' SOF at ISO. Judge Davis clearly did not abuse his discretion in making this finding. The Westinghouse Memorandum (Plaintiffs Exhibit 1 to the SOF), can fairly be described as shocking. It advises the adoption of a program to destroy Westinghouse records. Hies, and documents based on criteria not relating to applicable law relating to document retention, but based on whether the evidence would be potentially harmful to Westinghouse in toxic tort litigation. Among the factors that the author recommended be considered in determining whether a document should be retained or destroyed were "the chances of litigation," "which party would have the burden of proof," and when the statute of limitations would run. Plaintiffs Exhibit 1 at 12. In considering whether plant correspondence files concerning safety during the early 1970's, the author of the document noted: These files show corporate knowledge of hazards but no actual implementation of corrective measures. Consequently, the documentation is potentially harmful. Plaintiffs Exhibit 1 at 15. Elsewhere in the memorandum, the author is more direct. He observes. From a review of the files, it appears that the Department commented and editorialized on just about everything which might have been found in the workplace. This "self analysis" and "editorializing" type of information can be dangerous. This is just the type of documentation which should be discarded^ from the flies. I Plaintiffs Exhibit 1 at 13*14. The Memorandum is replete with references to "smoking gun" documents, with the unavoidable implication that these documents should be discarded. On the S3/PT'd 12 Xi'stmtia * aana ? kioaua t^s.-sa E6, pz aaj other hand, the Memorandum also makes references to ''favorable" data which the author recommends that Westinghouse "continue to maintain." Plaintiffs Exhibi; l at 17. Westinghouse stresses that it presented evidence that the document destruction policies advised in the "smoking gun memorandum" were never implemented, Of course, all this evidence came from Westinghouse employees, whose credibility is tainted by their obvious incentive to assure the court that no improper document destruction took place. Moreover, even if Judge Davis accepted their testimony at face value (which Judge Davis was by no means obligated to do), the fact that the fraudulent plan was not implemented may affect the relevance or admissibility of the memo, but is utterly irrelevant to the issue of whether the document deserves protection under the attorney-client privilege. Tex.R.Clv.Evid. 503(d)(1) does not withdraw the attorney-client privilege only if the communications facilitated the actual commission of a crime or fraud; it removes the privilege if the commurications "aid anyone t o . . . plan to commit" criminal or fraudulent activity. j As in Granada, the Memorandum itself "suggests] a possibility of fraud sufficient to bring the documents within the crime-fraud exception." 36 Tex.Sup.Ct.J. at 353. All witnesses called by Westinghouse recognized the duty to preserve evidence potentially relevant to pending litigation. SOP 69-70 (testing of Ronald Lawrence, assistant general counsel at Westinghouse); SOP 99 (testing of Jeff Bair, also assistant general counsel at Wptinghouse); SOF 111 (Testimony o f Clarence Wayne Blckerstaff, manager of industrial hygiene at Westinghouse). To shield disclosure of a document essentially advocating the breach of this duty would dishonor the attorney-client privilege. Judge Davis' properly ruled that the crime-fraud exception to the SZ/'ST'd 13 xi'stmua * aons $ wodbs]ss :80 eg* pb ftu attorney-client privilege allows disclosure of the documents in question, and his ruling should not be disturbed. II. RELIEF BY MANDAMUS IS UNAVAILABLE. A writ of mandamus is an extraordinary remedy and will issue only l) when the trial court has committed a clear abuse of discretion and 2) when them is no adequate remedy by relator on appeal. Walker v, Pecker, 827 S.W,2d 833,839 (Tex. 1992), As to this first prong, a trial court abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.11 Id, (citing JohnsonI v. F~ourth Court ofAppeals, 700 S. W.2d 916,917 (Tex. 1935)). In reviewing a trial court's resolution of factual issues, the reviewing court may not substituto its judgment for that of the trial court. and significantly, the relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. This Westinghouse has not done. Further, in reviewing a trial court's determination of controlling legal issues, the reviewing court must find a failure to analyze or apply the law properly in order to find an abuse of discretion in the trial court's ruling. Id. to the facts at hand .and did not abuse his discretion in finding the Westinghouse documents admissible under the crime-fraud exception to the attorney-client privilege or in finding that Westinghouse waived any privilege that may have existed through its voluntary disclosure of the documents. Additionally, in order for mandamus to be available, the relator must show that it has no adequate remedy on appeal. Mandamus would be adequate, for example, in the rare situation lI in which the trial court compels production of previously undisclosed documents since such 2 /9 1 'd 14 'Xi'stmya * aans s nohuh ;80 e s . PE FTH disclosure could not be retracted on appeal. Walker, 827 S.W.2d at 843. This scenario however; is clearly not the situation before this court. Westinghouse voluntarily supplied the documents in question to plaintiffs; no court compelled Westinghouse to make such a disclosure. Thus, even were this court to gram leave to file mandamus, the fact that the documents have been disclosed would remain unchanged.5 Mandamus would thus not prevent the harm feared by Westinghouse; the harm has already ocurred, through Westinghouse's voluntary disclosure. See, e.g., Walker vt Packer; 827 S.W.2d at 843 quoting Crane v. Tunks, 160 Tex. 182, 190, 328 S,W.2d 434, 439 (M[a]fter the [privileged documents] had been inspected, examined, and reproduced. . . a holding that the court had erroneously issued the order would be of small comfort to relators in protecting their papers."), Westinghouse's only possible concern at this point, then, must be for the alleged prejudicial effect the documents would have at trial. However, it is well settled that evidentiary matters such as this are adequately reviewed on appeal and not by the extraordinary remedy of mandamus. Walker v. Packer, 827 S.W.2d at 843-44. This Court would not consider on mandamus a contention (hit the trial court was about to erroneously uhnit hearsay or irrelevant evidence. The Court should deny Westinghouse's motion for leave to file the mandamus petition for the same reason. 5Plaimiff would point out that he initially agreed with counsel for Westinghouse not to disseminate the information mmh a ruling was obtained by Juidge Brooks on February 5, 1993. This agreement was subsequently extended by both parties until Judge Davis could rule on tho privilege issue, Judge Brooks having had to recuse himself from the matter. After Judge Davis signed the order denying privilege, plaintiff was then free to' disseminate the information. 15 S2/^I'd xi'stmya * aana Noaba 9S:sg es, vz ssj For the foregoing reason, plaimiff respectfully pray that Westinghouse's motion for leave to File petition for writ of mandamus be denied. Because this Court's stay order affects the trial currently proceeding in Judge Davis's court, plaintiff urges the court to lift the stay immediately. Respectfully submitted, BARON & BUDD, P.C. 3102 Oak Lawn Avenue Suite 1100 Dallas, State Bar No. 17281075 RUSSELL W. BUDD State Bar No. 03312400 C. ANDREW WATERS State Bar No. 20911450 CERTIFICATE OF SERVICE I hereby certify that the foregoing reply was served by telecopier and U.S. Mail on Bruce W. Bowman, Jr., Vial, Hamilton, Kock & Knox, 1717 Main Street, Suite 4400, Dallas, Texas 2/81'd x i's tm b a * aana s Noaye s :80 6/ pe S3j UEF.IISTICE THOMAS R. PHIU.IPS (I sKTA!Cl'EI.>AGONZALEZ (UK MUVHTOXl'EK s VTHANL HECHT IJOHtIMXWiFTT IOII.N COKMN MOB OVMMAGE I K\|(. ENOCH si t'R MTiCTOK T he s u p r e m e c o u r t of T exas POST OFTICE SOX 1224S 11 5T7.N. TIXAS V I I TIL 1112) 44.1-1 M2 FOC l M 2 4.1-I Vtl February 16, 1993 CLERK JOHN T ADAMS EXECITTVE ASST WILLIAM L VOLLI- AOMIMSTOTOZ A" " T MARY \NN DEEHUt l.tl Mr. Mark A. Kandrlx Vial, Hamilton, Koch and Knox 1717 Main street Suite 4400 Dallas, TX 75301 Mr. Brucs W. Bowman, Jr. Vial, Hamilton, Koch fc Knox 1717 Main St., Suite 4400 Dallas, TX 75301 Ms. suzette L. Davie Vial Hamilton Koch & Knox 1717 Main Street Suite 4400 Dallas, TX 75301 Mr. Robert E. Thackston McGuirs Woods Battls & Booths One James Center 901 E. Cary Street Richmond, VA 23219 Mr. B. Soott Tilley McGuire, Woods, Battle & Boothe One James center 901 E. Cary street Richmond, VA 33219 Mr. Russell W. Budd Baron & Budd, P.c. 3102 Oak Lawn Avenue Suits 1100 Dallas, TX 75319-4281 Mr. Brent M. Rosenthal Baron 6 Budd, P. C. 3102 Oak Lawn Avenue Suite 1100 Dallas, TX 75219-4381 Mr. C. Andrew Waters Baron 6 Budd, P.C. 3102 oak Lawn Ave., Suite 1100 Dallas, TX 75219-4281 Hon. Paul R. Davie, Jr. Judge, 200th Judicial District Court Travis County Courthouse P. O. Box 1748 Austin, TX 78701 RE: Case No. D-3385 Style: WESTZNGHOU8E ELECTRIC CORPORATION v. THE HONORABLE PAUL R. DAVIS, JR., JUDGE 2/6T` d x i'stm u a * aane s Noaua 6:80 66, t>2 S3j Page 2, 0*3385 02-16-93 RE: Casa No. 0-3385 Styl: WESTINGHOUSE ELECTRIC CORPORATION V. THE HONORABLE PAUL R. DAVIS, J R . , JUDGE Dear Counsel: Today, tha Suprama Court of Texas ovarrulad ralator'a motion for laava to fila petition for writ of mandamus in tha above styled case. Tha Stay Order issued February 10, 1993, is vacated. Respectfully yours, JOHN T. ADAMS, CLERK BVi h s n U iL r Tench* Damian, Deputy xi'strrwa * aana s Noaue ss:80 e6 , vz ehj NO. 91-14798 PETER M. DASHKO, INDIVIDUALLY AND Af PERSONAL REPRESENTATIVE 07 THE HEIRS AND ESTATE 0? STEVEN DOUGLAS, DECEASED VS EXEREBOARD CORP., ET AL. $ $ S 99 S 9 5 $ 5 IN THE DISTRICT COURT OF TRAVIS COUNTY, T E X A S 331ST JUDICIAL DISTRICT ORDER DENTINO WE3TINGHQU3E ELECTRIC CORPORATION1S fflA O Loz m a m a On th* 8th day of February, 1993, can* on to be haard Plaintiff's Motion to Deny Application of Privilege and Westinghouse Electric Corporation's Motion for Protective o r d e r , Request for In Camera Inspection, and Motion for order Preventing Dissemination of privileged information in the above styled and numbered cause. The court, After considering the evidence^JMf authorities, and arguments of counsel finds that westinghouse Electric corporation's 1 Exhibits 1 and 5 (Bates Numbers 0032997-0033018 and 0032C71), tendered to end considered by the Court camera, are privileged documents under the attorney-client privilege; end further finds that Exhibit* i and 5 fell within th* crime/fraud exception to privileged documents of Rule 303(d)(1) of the Tex* R. Civ. Evld. as auch documents were prepared, and describe e plan, to commit fraud on the courts of this nation; and Further finds that Westinghouse Electric Corporation has waived its olaim of privilege to exhibits 1 and 5. IT 13, THEREFORE, ORDERED, ADJUDGED AND DECREED that Westinghouse Electric corporation's Request forin Camera S2 /T 2 'd x i'stm u a * aane Inspection ii GRANTED as to Exhibits 1 and 5. XT IS FURTHER ORDERED, ADJUDGED AND DECREED that Exhibits 1 and 9 wara mad tor tha purpose of facilitating tha rendition of professional legal services to weatinghousa Sljaotrio corporation; that Exhibits 1 and 5 fall within tha erimajfraud except ion to I1 i privileged documents of Tax. R. civ. Evid. 503(d)(1); and that Wastinghouaa Electric corporation has waived its claim of prlvil&go to Exhibits 1 and 3. XT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that weatinghouaa Electric corporation's Motion for Protective order and Motion for order Preventing Dlsseal|natlon of confidential Information is DENIED. XT IS FURTHER ORDERED,``ADJUDGED AND DECREED that Wcmtiaghouso Electric Corporation's request that thin Order be stayed pending its Application for writ of Mandamus is DENIED. Ii XT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion to Deny Application of Privilege 18 GRANTED. | | All relief requested by the above motions and not expressly granted herein is DENIED. SIGNED this ^ day of February, PAUL R. [DAVIS, JR. judge Presiding S Z /Z Z 'd 2`X i'strn y a * aana $ Noays 6S:80 6. pz szj 1S7 1 describe, and X cannot find and do not believe 2 that the evidence sustains a finding that the 3 disclosure waa compelled erroneously', and I do not 4 I find that the avidanca support* -- that tha 5 diaoloaura waa mads without an opportunity to 6 claim tha privilege* 7 Thera'e certainly not any claim that the 6 plaintiffs made tha defendant or that any court 9 made tha defendant diaeloaa this document, so to XO that extent it was voluntary* I I it does seam to the court an if it were* 12 an accident that this document waa included, but 13 cannot find that tha disclosure waa an involuntary 14 one, and accordingly have made ay ruling* 15 We have one additional Westinghouse 16 matter, end it'a lata. We've bean jdoing this all 17 day long, and thia ie hard, so I want to taka that 18 up firat thing in the morning,! which will be at 19 8s30* 20 So we'll reconvene for that purpose 21 tomorrow* 22 HR* BOWMAN Judge, |based on your 23 ruling, wa of course need to present an order, I 24 auppoaa, firat thing tomorrow!, whan va can. 25 Wa would request that you either stay PATRICIA A. DAY, OSB OFFICIAL COURT REPORTS* 'xi'stmua * aans $ nohbh 6 3 :8 0 ES, VZ S3J 156 1 consideration the testimony ss veil as the 2 document itself, it was for the purpose of legal 3 services to Meetinghouse by the legal department, 4 Second, with respect to the xoaption to 5 the lawyar/client privilege contained in Rule so3, 6 the court finds that the document vas prepared end 7 the document describes a plan to conalt fraud on 8 the courts of this nation by Wesblnghouse* 9 Third, with respect to jth e J e a u e of |J 10 waiver, the Court finds that Waatinghouse hae in 11 faet waivad thia priviloge and accordingly orders . 13 the -- daniaa Wsatinghouse'a motion to exclude 13 thia document and grants the plaintiff'e motion 14 with raapect to tha privilaga* IS The supreme court in the Granada case 16 talks about a difference between en inadvertent 17 production whioh can be voluntarIy, whI ich they 18 describe as voluntary, and involuntary production 19 And apparently in the supreme Court's 2 0 idea there's a sliding scale that somewhere 21 inadvertence turns into involuntary* 22 Moll, 1 have road that decision very ii 23 closely on several ocoacions while yeu-all have 24 been arguing today, and X have|alsojread Ruls 512, 25 which 1 think la what tha courts are trying to PATRICIA A. PAT, C8A OFFICIAL COURT REPORTER d xi'stmya * aans woayg 00:60 es, pz an 1 Th only point of dintiAction that 2 they're &ble to bring up, Judge, J*le "Hall, we 3 found o u t about it quicker.* And7 !i don't think 4 Granada even suggests that that in and of itself 5 could possibly bo a reason for afating it aside 6 Thank you. Judge, ^ 7 THE COURTI Thankdv Hr. Waters. 8 MR. BOWMANl I J u d g .i, I would only 9 point out that the rest of the paragraph that Hr, 10 Waters didn't read indicates, "Moreover, Granada 11 only sought production after 11 Aontha had 12 passed." M 13 Z mean, wo can talk about -- ve both 14 pointad out, z think, all the factors. 15 THE COURT: YOt* 16 I'm going to find several things here. 17 First of all, that this particular document, 16 Plaintiff's Exhibit 1 in this proceeding, was in 19 fact made with roapoct to tha rendition of 20 professional legal services to Waetinghous, 21 secondly and that to me is a fairly 22 close call, by the way. I certainly do understand 23 the plaintiff's argument that the document was in r 24 fact a businaaa policy decision v thin 25 meetinghouse, but i think taking into PATRICIA A, OAT# p t t OFFICIAL COURT REPORTER xi'strnua * aans $ Noyye 00:60 es, vz ehj