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Click here for the full text of this decision FACTS:Shortly after the catastrophic March 2005 explosion at the British Petroleum (BP) refinery in Texas City, BP filed with the Securities & Exchange Commission a Report on Form 6-K stating that a reserve of $700 million would be set aside to resolve the projected claims for personal injuries and fatalities arising from the incident. The reserve figure was computed by William Noble, an in-house attorney at BP. The materials Noble used to compute the figure and his methodology were not disclosed to the SEC; rather, only the $700 million figure was disclosed. Subsequently, the plaintiffs sought the supporting materials in a request for production. BP objected on the ground that the request was overly broad, and BP stated that it would withhold the documents, because they were protected by work-product and attorney-client privilege. On April 17, the plaintiffs filed a motion to compel production on the grounds that the methodology underlying the computation of the reserve figure constitutes business advice not subject to the attorney-client or work-product privileges and that BP waived any such privileges by disclosing the $700 million figure to the SEC and to the media. On April 20, BP responded that its disclosure of the $700 million figure was not privileged but that the materials used to compute the figure, along with Noble’s methodology, were privileged, had not been disclosed and were irrelevant to the litigation. BP appended the affidavit of Noble, in which he attested, inter alia, that he prepared the estimate in his role as in-house lawyer for BP using knowledge he gained as a lawyer working on suits arising from the accident, work-product documents and attorney-client communications. On the same day that BP filed Noble’s affidavit, the trial court held a hearing on the motion to compel. The plaintiffs later objected that Noble’s affidavit was fatally defective, because it was conclusory due to its failure to identify any documents in any manner. In addition, the plaintiffs reasserted the argument that BP’s public disclosure of the reserve figure resulted in its waiver of any privilege relating to the figure. BP argued in its supplemental brief that no waiver had taken place. On July 19, the trial court granted the plaintiffs’ motion to compel, sustaining the plaintiffs’ objections to Noble’s affidavit on grounds that BP waived its privileges. BP sought mandamus relief from the order. In two issues, BP contended that the trial court abused its discretion by compelling the production of the materials reviewed to compute the reserve because the materials were protected by the attorney-client and work-product privileges and disclosure of the final numerical sum to the SEC did not waive the attorney-client and work product privileges that attached to the underlying materials. HOLDING:The writ was conditionally granted. The plaintiffs argued that Noble’s affidavit was fatally defective because it is conclusory in that it makes only global allegations. The court stated that an affidavit is conclusory if it provides no factual bases for the applicability of the privileges asserted. However, the court found that Noble’s affidavit provided factual bases for the applicability of the attorney-client and work-product privileges in that, among several factors, Noble attested that he prepared the estimate in his role as in-house lawyer for BP Products and as one of the lawyers working on suits arising out of the March 23 accident and he prepared the estimate by using knowledge that he gained as a lawyer on those cases, as well as work product documents and attorney-client communications. The court found the affidavit sufficient to satisfy the initial burden imposed on BP by Texas Rules of Civil Procedure 193.3 and 193.4. Following a detailed analysis, the court concluded that the trial court abused its discretion in determining that Noble’s affidavit was conclusory and therefore, insufficient to assert the applicability of the attorney-client and work product privileges. As for the waiver issue, the court noted that BP strictly limited its disclosure to the reserve figure itself and there was no disclosure of BP’s methodology outside of BP personnel. Accordingly, the court concluded that BP did not waive its attorney-client and work-product privileges with regard to the underlying methodology. In sum, the court held that the trial court abused its discretion by concluding that Noble’s affidavit was conclusory and by striking the affidavit as insufficient to invoke BP’s asserted privileges. BP requested that the court held that the documents are privileged without an in camera review or that it order that an in camera review be conducted. The court did not reach those questions and limited its holding today to the conclusion that the affidavit was not conclusory. OPINION:Alcala, J.; Taft, Alcala and Higley, J.J.

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