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Click here for the full text of this decision FACTS:Robert John Anderson worked in the Hazmat Division of the San Antonio Fire Department and was the union spokesman during contract negotiations with the city. Anderson submitted a request to Chief Robert Ojeda, asking to work part-time for the city’s third-party benefits administrator, Employee Benefit Administrators. Ojeda denied Anderson’s request in a letter dated Feb. 11, 2002. He said the city attorney’s office had advised that he could not represent EBA before the city. Attached to Ojeda’s letter was a Feb. 11 letter from Rosanna Gonzales of thecity attorney’s office to the attorney for EBA expressing the city attorney office’s opinion on Anderson’s request. Anderson, who had already begun work at EBA, resigned from EBA on Feb. 13. Because he believed the denial of his request was motivated by opposition to Anderson’s status as union representative, Anderson filed suit against the city, Ojeda and Gonzales. In his first request for production, Anderson asked for records related to his own employment with EBA. The city’s response was, “See attached documents at Tab A.” In his second request for production, Anderson asked for records related to the city’s contention that Anderson’s employment with EBA violates city ethics code provisions. The city’s response was, “See response to request for production no. 1.” Later, during Gonzales’ deposition, Anderson learned of a request she received in January 2002 asking her to prepare a memo on the ethics of Anderson’s employment with EBA. The city asserted an attorney-client privilege when Anderson asked for the contents of the memo and asserted a similar privilege when Anderson filed a request for production of the memo. Anderson filed a motion to compel the production of the memo, which the trial court denied. Anderson now asks for a writ of mandamus. HOLDING:Writ conditionally granted. The court first agrees that mandamus would be appropriate because Anderson does not have an adequate remedy by appeal. If Gonzales stated in her memo that she did not believe that Anderson’s proposed employment would violate the ethics code, the memo would be evidence that the city’s denial of Anderson’s request based on a possible ethics violation was a pretext. Such evidence would indeed go to the heart of Anderson’s case. The court then finds that the city did not comply with Texas Rule of Civil Procedure 193.3(b) because, when it was first served with Anderson’s request for production, it did not state in its response or in a separate document 1. that the memo was being withheld, 2. the request for production to which the memo related, or 3. the privilege that would be asserted related to the memo. The city’s assertion of a privilege came after the city’s response to the requests for production. The exemption under Rule 193.3 does not apply. That exemption applies to documents created or made from the point the client contacts the lawyer for legal services in defense of a specific claim. The memo at issue here was created before Anderson filed suit. OPINION:Angelini, J.; Angelini, Marion and Speedlin, JJ.

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