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On Petition for Writ of Mandamus

The issue here is whether the trial court abused its discretion when it refused to disqualify Nitla’s counsel, who had reviewed privileged documents that the trial court ordered the opposing party to produce. The court of appeals issued mandamus, ordering the trial court to disqualify Nitla’s counsel. In re Bank of Am., N.A., 45 S.W.3d 238, 245 (Tex. App.-Houston [1st Dist.] 2001). However, in so doing, the court of appeals misapplied the law and thus abused its discretion. Accordingly, we granted Nitla’s motion for rehearing, and we now conditionally grant a writ of mandamus and direct the court of appeals to vacate its order.

Nitla, a Mexican pharmaceutical company, sued Bank of America (BOA) in 1996. Nitla claimed that BOA misappropriated over $24 million of Nitla’s funds on deposit. During discovery, Nitla asked BOA to produce certain documents. BOA resisted and asserted the attorney-client and work-product privileges. After an in camera inspection and a hearing, the trial court identified numerous documents that it determined BOA should produce. BOA asked the trial court to stay production until BOA decided whether to seek emergency relief in the court of appeals. Rather than issue an order, the trial court requested additional briefing and scheduled another hearing. The trial court also indicated it would order BOA to produce any non-privileged documents at that time.

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