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Click here for the full text of this decision FACTS:David Crudup and his wife were feuding neighbors of Cynthia Blank and her teenage son Travis. The Crudups and the Blanks complained repeatedly about each other to the Bexar County Sheriff’s Office regarding such incivilities as barking dogs, obscenities yelled, cut cable lines, strewn grass clippings, trash left in a yard, rocks thrown at a fence, water sprayed on cars and grass, and a sprinkler that ran too long and created a puddle. Each time, the responding officer would talk to both sides and prepare an incident report. On one occasion, Travis Blank alleged that Crudup threatened to kill him. Following this complaint, Bexar County’s criminal district attorney charged Crudup with making terroristic threats. During their investigation, members of the DA’s office interviewed Blank on several occasions. The DA’s prosecution file contained sheriff’s department reports, typed internal memos, letters written by Blank, and handwritten notes from interviews and telephone calls prepared by the DA’s office. One set of notes detailed a series of calls between Blank and Assistant DA Robert McCabe. The file indicates that Blank refused to testify or to allow Travis to testify at trial, despite McCabe’s warnings that the DA’s Office would drop the charges against Crudup if they did not testify. The DA’s office indeed dropped the charges, and Crudup sued the Blanks for malicious prosecution. The DA’s office complied with a subpoena and turned over its prosecution file to Crudup for use in the civil case. Crudup subpoenaed McCabe, another assistant DA and a DA investigator to testify at trial. The DA’s office and the three subpoenaed individuals filed a Motion to Quash and For Protective Order, arguing that the work-product privilege precluded the testimony Crudup sought. Crudup’s response attached no evidentiary support other than the previously produced prosecution file. Crudup insisted the DA testimony was not work product, and in any event the DA had waived any privilege claim by disclosing the prosecution file. The trial court conducted a brief nonevidentiary hearing and granted the DA’s motion from the bench. At the hearing, Crudup’s attorney complained that the court had “severely limited and handicapped my case.” Crudup filed a motion for reconsideration, attaching a transcript of the hearing and arguing that he needed the testimony from the DA personnel to fully develop his case and to prove the elements of malicious prosecution. The motion also attached notes from the prosecution file written by McCabe. The trial court entered a written order again granting the DA’s motion and effectively denying the motion for reconsideration. The 4th Court of Appeals granted Crudup mandamus relief and directed the trial court to withdraw its order. The 4th Court concluded that under the 2003 Texas Supreme Court opinion King v. Graham, Crudup had to prove that Blank’s provision of false information was the determining factor in the DA’s decision to bring the criminal prosecution, and that “[u]nder these circumstances the work-product privilege does not operate as a blanket privilege covering all decisions made by the DA’s office.” The DA sought mandamus relief before the Texas Supreme Court. HOLDING:The court conditionally granted the petition for writ of mandamus and directed the 4th Court to vacate its writ of mandamus and to reinstate the trial court order quashing the subpoenas and issuing a protective order. Causation is an indispensable element of this malicious prosecution case, the court stated. To recover for malicious prosecution when the decision to prosecute is within another’s discretion, the plaintiff must prove that that decision would not have been made but for the false information supplied by the defendant. So Crudup, the court stated, must prove not only that the Blanks furnished false information but also that this false information caused Crudup to be prosecuted. Crudup argued that a necessary element for a malicious prosecution is the testimony of the district attorney’s office, but the court strongly disagreed. Nothing in King, the court stated, suggested that plaintiffs must provide direct evidence of causation or that prosecutors can be subpoenaed to provide live testimony regarding causation or anything else. Next, the court found that all of the relevant work done by the DA’s office in connection with the criminal proceeding against Crudup � namely “material prepared or mental impressions developed in anticipation of litigation or for trial” or communications “made in anticipation of litigation or for trial . . . among a party’s representatives” � constituted work product under Texas Rule of Civil Procedure 192.5(a). Rule 192.5(b)(1), the court stated, distinguishes everyday work product from “core work product” and makes clear that the latter � defined as “the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories” � is inviolate and flatly not discoverable, subject to narrow exceptions not applicable to this case. Assuming arguendo, the court stated, that the testimony Crudup sought was non-core work product, Crudup still bore a heavy burden to show a substantial need for the testimony in the preparation of his case and that he was “unable without undue hardship to obtain the substantial equivalent of the material by other means.” The court found that Crudup lacked substantial need under Rule 192.5(b)(1), because other ways of proving causation existed. In addition, because the DA turned over the file, the court found that Crudup could not show inability to obtain the substantial equivalent of the requested material. The court then found that the DA’s office did not waive the privilege by producing the file. While waiving the privilege as to the documents themselves, the court held that the DA office’s action did not waive the DA’s testimonial work-product privilege regarding the prosecutor’s mental processes; nor did the DA’s file disclosure itself give rise to a “substantial need” or “undue hardship” sufficient to overcome the privilege that protects non-core work product. OPINION:Willett, J., delivered the opinion of the court, in which Hecht, O’Neill, Wainwright and Brister, J.J. joined. Green, J., did not participate in the decision. CONCURRENCE:Willett, J., delivered a concurring opinion. “I agree with the DA’s Office that granting Crudup’s demand for live testimony would, if anything, exacerbate evidentiary challenges for future malicious prosecution plaintiffs. District attorneys are chiefly focused on their criminal caseloads � ‘the primary duty of all prosecuting attorneys . . . [is] to see that justice is done’ � not on being taxpayer-funded witnesses and investigators in private damages suits.” DISSENT:Johnson, J., delivered a dissenting opinion, in which Jefferson, C.J., and Medina, J., joined. “Because the Crudups’ response raised the question of disclosure of the DA’s work product both by disclosure of the DA’s litigation file and by its employees’ conversations with Blank, the question of waiver of privilege was raised and the DA had the burden of proving that no waiver occurred. . . . The Crudups’ counsel has maintained that he planned to prove that the complaint made by the Blanks to the DA was false and that the DA would not have filed the criminal proceedings absent the false complaint. Maybe he can; maybe he can’t. But counsel was entitled to formulate and pursue trial strategy without having it limited by a preemptive exclusion of certain witnesses with knowledge of relevant matters or having to disclose his strategy and justify it in pretrial and appellate proceedings simply because the DA’s office filed a motion such as the one it filed.”

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