X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The relator, Mason & Company Property Management, seeks a writ of mandamus compelling the trial judge to vacate his order denying Mason the opportunity to depose attorneys C. Frank Wood and Julie Crockett Graham. Dr. Sandra Garcia entered a written commercial lease agreement for a building owned by WIPF Family LP. Garcia brought suit against WIPF alleging breach of contract and alleging fraud, and Garcia brought suit against Mason for allegedly negligently drafting a lease, allegedly committing negligence per se, and alleging the unauthorized practice of law. WIPF filed a cross-claim against Mason alleging negligence, negligence per se, breach of contract, and for attorney’s fees. JNW Property Holdings Inc., a defendant, also cross-claimed against Mason alleging negligence and negligence per se. Mason’s answer includes, among others, the affirmative defenses of estoppel and ratification pertaining to Garcia and Mason’s co-defendants. Wood was counsel for Garcia, and Graham was counsel for WIPF. Mason contends that the testimony of these witnesses is crucial to its affirmative defenses to the claim that it negligently drafted a commercial lease agreement. HOLDING:Writ of mandamus conditionally granted. The party resisting discovery bears the burden of proving any applicable privilege. To make a prima facie showing of the applicability of a privilege, a party must plead the particular privilege and produce evidence to support the privilege through affidavits or testimony. In Re: Valero Energy Corp., 973 S.W.2d 453 (Tex. App. Houston [14th Dist.] 1998, orig. proceeding). The court concludes that the respondent abused his discretion in refusing to allow the depositions of Graham and Wood. As an initial matter, the record before this court does not indicate that the real parties in interest carried their burden to prove the privilege by producing evidence to support the privilege. As a more fundamental matter, the court states, a deposition may not be quashed in its entirety on grounds that some of the matters to be explored may be privileged. An attorney may be deposed, even if he or she represents a party to the litigation at issue. Borden Inc. v. Valdez, 773 S.W.2d 718 (Tex. App. – Corpus Christi 1989, orig. proceeding). Though the court emphasizes that the tactic of seeking discovery from opposing counsel should be disfavored, and the court takes a stringent view toward allowing depositions of opposing counsel, the court believes that Mason has shown that it is seeking discovery that is relevant to the claims and defenses at issue in this suit and that discovery is necessary to the presentation of its case. “Mason has explored other methods to obtain the necessary discovery, that is, by deposing Garcia and WIPF, and it possesses no other means to obtain the necessary information. The discovery is not cumulative and does not appear available from any other source.” The court notes that, to the extent that Mason seeks to discover communications between Graham and Wood, such communications would not be covered by the attorney-client privilege. Mason may depose Graham and Wood for facts relevant to Mason’s affirmative defenses of ratification and estoppel. OPINION:Hinojosa, J.; Valdez, C.J., Hinojosa and Rodriguez, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.