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No. 04-03-00253-CV, 6/16/2003. Civil Litigation Click here for the full text of this decision FACTS: This mandamus arises out of a trespass action filed by Terry A. Canales against AEP Texas Central Co. and Milton Menking, a former employee of AEP. Canales, angered by what he considered to be illegal electrical poles on his property, burned the poles to the ground with the live wires still attached, even though Canales had been informed by AEP’s counsel, Broyles & Pratt (B&P), that, in their opinion, AEP had a right to maintain equipment on Canales’ property. In response to the burning, AEP commissioned B&P to analyze the potential claims that AEP could assert against Canales and those claims that Canales could assert against AEP. These were outlined and discussed in a B&P legal memorandum on June 28, 1999. On Feb. 14, 2000, Canales brought suit against AEP and Menking, alleging trespass. AEP hired Vinson & Elkins (V&E) to represent it in the suit. On June 24, 2000, AEP and Menking produced documents in response to Canales’ requests for production. On Nov. 7, 2000, an attorney at V&E realized that the B&P memorandum of June 28, 1999, had been produced inadvertently and sent a letter to Canales’ attorney requesting that the memorandum be returned, pursuant to Texas Rule of Civil Procedure 193.3(d) on the grounds that it was protected by the attorney-client and work-product privileges. Canales’ counsel refused to return the memorandum. A second request was similarly made and rejected. AEP and Menking filed a motion to compel return of the privileged document inadvertently produced pursuant to Texas Rule of Civil Procedure 193.3(d). After a non-evidentiary hearing, the trial court denied the motion. AEP & Menking then filed a motion to exclude the document and requested an evidentiary hearing pursuant to Texas Rule of Civil Procedure 193.4. After the evidentiary hearing, the trial court denied the motion. In response, AEP and Menking, the relators herein, sought a writ of mandamus ordering respondent, Judge Rose Vela, to vacate her order of March 12, 2003, and enter an order preventing the use of the legal memorandum that had been inadvertently produced. HOLDING: Petition for writ of mandamus conditionally granted; the trial court abused its discretion in denying relators’ motion. The court notes that mandamus is an extraordinary remedy that may be utilized only when there is no adequate appellate remedy. With regard to issues of discovery, and particularly a claim of privilege, the Texas Supreme Court has stated that a party will not have an adequate remedy by appeal if the appellate court is unable to cure the trial court’s discovery error – as in the case where the trial court erroneously orders disclosure of privileged information which will materially affect the rights of the aggrieved party. The rationale: A holding that the trial court has erroneously issued an order to disclose privileged documents will be of little comfort to relators once such documents have already been inspected, examined and reproduced by the opposing side. Thus, the court rejects Canales’ contention that since relators asked the trial court to prevent him from using the memorandum during the course of the trial, the trial court’s ruling is converted into an evidentiary ruling rather than a discovery ruling, which could be appealed. Rather, the court agrees with the relators that the trial court’s order is reviewable by mandamus. The court supports relators’ assertion that the legal memorandum is protected by attorney-client and work-product privileges. Rule 193.3(d) of the Texas Rules of Civil Procedure clearly states that a party can assert a claim of privilege to material or information that the party, without intending to waive the privilege, produces inadvertently. Even though Canales had possession of the document, relators were still entitled to assert their claim of privilege. Moreover, the court rejects Canales’ contention that relators’ request was barred by laches. The court notes that mandamus recovery should not be denied based on delay if, as in the case of Canales, no harm has occurred as a result thereof. Similarly, the court rejects Canales’ argument that, even if the memorandum were privileged, relators waived that privilege by failing to comply with rule 193.3(d) by Oct. 1, 2000. The court notes that a party who fails to diligently screen documents before producing them does not waive a claim of privilege. The 10-day period allowed for an amended response runs from the party’s first awareness of the mistake, not from the production of the material. Because the undisputed evidence shows that relators had no actual knowledge of the inadvertent production of the memorandum until Nov. 7, 2000, they did not waive their claim of privilege. In concluding that the memorandum was indeed privileged, the court holds that the trial court abused its discretion in denying relators’ motion. OPINION: Angelini, J.; Angelini, C.J. Lopez and Green, JJ.

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