In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00093-CV
IN RE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,
MICHAEL DUNN, AND SMEAD, ANDERSON & DUNN
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
This original mandamus proceeding arises out of a discovery dispute regarding emails
between the attorneys for real party in interest, John Goin, and certain attorneys representing
Hope Crump that Goin has asserted are protected by the allied-litigant privilege.1 The trial court
reviewed the disputed communications in camera and upheld the privilege with respect to all the
emails in question. Travelers Property Casualty Company of America (Travelers), Michael
Dunn, and Smead, Anderson & Dunn (collectively the Dunn Defendants), Relators, have
petitioned this Court for a writ of mandamus requiring the Honorable Laurine J. Blake, judge of
the 336th Judicial District Court of Fannin County, to vacate a portion of her order denying their
motions to compel and sustaining Goin’s assertions of allied-litigant privilege and requiring
Judge Blake to enter an order overruling Goin’s assertions of privilege and granting Relators’
motion to compel production of the emails. Because Relators have not shown the lack of an
adequate appellate remedy, we deny the petition for a writ of mandamus.
In a prior mandamus proceeding, we set forth some of the pertinent background:
In January 2012, Goin, an employee of Mica Corporation (Mica), was driving a
pickup truck owned by Mica when it was involved in a rollover accident in which
the passenger, Hope Crump, was ejected and rendered a paraplegic. In March
2012, Crump sued Goin and Mica in Anderson County, seeking recovery of
damages for personal injuries sustained as a result of the accident. The truck, and
all permissive users, were covered by a commercial automobile policy issued to
Mica by Travelers. Consequently, Travelers hired [the Dunn Defendants] to
defend Goin in the lawsuit.[2]
1
See TEX. R. EVID. 503(b)(1)(C); In re XL Specialty Ins. Co., 373 S.W.3d 46, 52 (Tex. 2012) (orig. proceeding)
(“Rule 503(b)(1)(C)’s privilege is more appropriately termed an ‘allied litigant’ privilege.”).
2
This defense was tendered pursuant to a reservation of rights, as there was a question about whether Goin had
Mica’s permission to operate the pickup truck at the time of the accident.
2
In January 2013, Crump nonsuited the Anderson County lawsuit and later refiled
her claims in Dallas County.[3] Travelers did not tender a defense on Goin’s
behalf for approximately eighteen months after the lawsuit was filed, by which
time most of the pretrial deadlines had expired.[4] The trial took place in February
2015, at the conclusion of which the trial court entered judgment against Goin in
the amount of $10,125,433.96, prejudgment interest in the amount of
$220,532.40, and post-judgment interest at the rate of 5% per annum.
In re Goin, No. 06-17-00047-CV, 2017 WL 2961478, at *1 (Tex. App.—Texarkana July 12,
2017, orig. proceeding) (mem. op.).
According to Relators’ petition, in April 2015, Goin filed the present lawsuit against
Travelers and asserted various causes of action based on Travelers’ alleged mishandling of his
defense, including that Travelers breached its duties to defend and indemnify him and that it
violated various duties under the Texas Insurance Code, the Texas Deceptive Trade Practices Act
(TDTPA), and Texas common law. Goin later amended his petition to assert claims against the
Dunn Defendants and asserted claims against them based on the alleged mishandling of his
defense, including legal malpractice and violations of their duties under the Texas Insurance
Code, the TDTPA, and Texas common law. In May 2016, Crump intervened in the lawsuit as a
plaintiff and asserted an interest in Goin’s claims against Travelers and the Dunn Defendants.
In February 2018, the trial court granted the Dunn Defendants’ motion for leave to
designate E. Todd Tracy, Rachel Montes, Andrew G. Counts, the Tracy Law Firm, and Montes
Law Group (collectively the Tracy Group) as responsible third parties for any damages incurred
3
In the interim, Goin was sentenced to a term of twelve years’ incarceration, allegedly as a result of his conviction
for intoxication assault.
4
The parties vary greatly in their explanations for Travelers’ delay in tendering a defense to the Dallas County
lawsuit.
3
by Goin. According to the motion, the Tracy Group represented Crump in her personal injury
lawsuit against Goin. The motion alleged, inter alia, that, while Goin was in prison and
unrepresented in the lawsuit, one or more of the attorneys in the Tracy Group met with Goin and
convinced him to sign a pro se answer that they had prepared for him but neglected to tell him
that, if he did nothing, the lawsuit would be dismissed within a few weeks.
In April 2020, Crump non-suited her claims in intervention against Travelers and the
Dunn Defendants in this lawsuit. During discovery, Relators served requests for production of
documents requesting all correspondence between Goin or his attorneys and the attorneys in the
Tracy Group. On January 21 and June 4, 2021, Goin filed two privilege logs identifying over
100 emails and email chains between his attorneys and the attorneys in the Tracy Group of
various dates between May 12, 2015, and January 7, 2021, and asserted that each email or email
chain was protected from disclosure by the allied-litigant privilege. Relators filed motions to
compel the production of the documents identified in the privilege logs, and after a hearing, Goin
produced the documents for in-camera inspection by the trial court. After reviewing the emails
and email chains identified in the privilege logs, the trial court denied the Relators’ motions to
compel and found that the allied-litigant privilege protected all of the emails and email chains
from production.
“To obtain relief by writ of mandamus, a relator must establish that an underlying order is
void or a clear abuse of discretion and that no adequate appellate remedy exists.” In re
Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding) (citing Walker
v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding)). “An abuse of discretion
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occurs when a trial court’s ruling is arbitrary and unreasonable, made without regard for guiding
legal principles or supporting evidence.” Id. (citing Ford Motor Co. v. Garcia, 363 S.W.3d 573,
578 (Tex. 2012)). “Similarly, a trial court abuses its discretion when it fails to analyze or apply
the law correctly.” Id. (citing In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig.
proceeding)).
However, even if the trial court abused its discretion, “[m]andamus will not issue where
there is a clear and adequate remedy at law, such as an appeal.” Able Supply Co. v. Moye, 898
S.W.2d 766, 771 (Tex. 1995) (citing Walker, 827 S.W.2d at 840–42). Appellate courts
“generally do not review orders refusing to compel discovery.” In re Allied Chem. Corp., 227
S.W.3d 652, 658 (Tex. 2007) (orig. proceeding). However, as we recently recognized, “the
Texas Supreme Court has recognized ‘at least three situations exist in the discovery context
where a remedy by an appeal may be inadequate.’” In re Travelers Prop. Cas. Co. of Am.,
Michael Dunn, and Smead, Anderson & Dunn, No. 06-21-00077-CV, 2021 WL 4432268, at *2
(Tex. App.—Texarkana Sept. 28, 2021, orig. proceeding) (mem. op.) (quoting Able Supply, 898
S.W.2d at 771) (citing Walker, 827 S.W.2d at 843). “First, there is an inadequate remedy by
appeal ‘when a discovery order imposes a burden on one party far out of proportion to any
benefit to the other.’” Id. (quoting Allied Chem. Corp., 227 S.W.3d at 658). “There may also be
an inadequate remedy by appeal ‘when a denial of discovery goes to the heart of a party’s case,’
or ‘when a discovery order severely compromises a party’s ability to present any case at all.’”
Id. at *3 (quoting Allied Chem. Corp., 277 S.W.3d at 658) (citing Able Supply, 898 S.W.2d at
772). And “there may be an inadequate remedy by appeal ‘where the trial court disallows
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discovery and the missing discovery cannot be made part of the appellate record, or the trial
court after proper request refuses to make it a part of the record, and the reviewing court is
unable to evaluate the trial court’s error on the record before it.’” Id. (quoting Walker, 827
S.W.2d at 843–44) (citing Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990);
Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex. 1984))). “A denial of discovery goes to the heart
of a party’s case when the party is prevented from developing essential elements of its claim or
defense.” In re Buffa, No. 13-18-00401-CV, 2018 WL 6187080, at *1 (Tex. App.—Corpus
Christi Nov. 27, 2018, orig. proceeding [mand. denied]) (mem. op.) (citing Able Supply, 898
S.W.2d at 772).
The district court has provided us with the sealed documents that were provided for in-
camera inspection by the trial court, and we have reviewed the same. After our review of the
documents, even assuming the trial court erred in its determination that all of the emails and
email chains were protected from discovery by the allied-litigant privilege, we cannot say that
the trial court’s rulings prevented Relators from developing the essential elements of their claims
against the Tracy Defendants, severely compromised their ability to present any case at all, or
placed a disproportionate burden on them. See Allied Chem. Corp., 227 S.W.3d at 658; Able
Supply, 898 S.W.2d at 772. As a result, we conclude that the Relators have not established the
lack of an adequate appellate remedy.
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Since Relators have not shown that they do not have an adequate appellate remedy, we
deny the petition for a writ of mandamus.
Josh R. Morriss III
Chief Justice
Date Submitted: November 4, 2021
Date Decided: November 5, 2021
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