In Re Carbo Ceramics Inc.

CONCURRING AND DISSENTING OPINION

YATES, J.,

concurring and dissenting.

I agree with the majority’s decision to deny mandamus relief with respect to production of the Shalen letter. However, I would also conclude Carbo did not establish that the trial court abused its discretion in ordering production of other withheld documents because Carbo failed to present evidence to the trial court supporting its claim that those documents are protected by the attorney-client privilege. Accordingly, I would deny relator’s requested relief in its entirety.

In addition to ordering production of the Shalen letter, the trial court’s order requires production of all other documents withheld by Carbo under the attorney-client privilege. As the party seeking mandamus relief, Carbo had the burden of providing this court with a sufficient record to establish its right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). Rule 193.4 provides that at any hearing on a claim of privilege, the party asserting the privilege “must present any evidence necessary to support the ... privilege.” Tex. R.Civ.P. 193.4(a); see also Barnes v. Whittington, 751 S.W.2d 493, 494 (Tex.1988) (orig.proceeding) (“The party claiming the privilege bears the burden of producing evidence to support such an exception by showing that the documents in question qualify for the privilege as a matter of law.”). The record in this case does not establish that Carbo produced evidence to the trial court supporting its claim of privilege as to documents other than the Shalen letter. Therefore, I would deny Carbo’s writ as to these documents as well.

The majority concludes that Carbo was not required to present evidence supporting its privilege claim as to documents other than the Shalen letter because Prop Tech did not “specifically challenge the privilege” as to those documents. I disagree. In the body of its motion, Prop Tech plainly requested that the trial court order production of the Shalen letter “as well as all other documents listed on Car-bo’s privilege log.” Prop Tech’s prayer requests production of the Shalen letter and “all other exhibits previously withheld on the grounds of attorney client privilege.” Although the prayer uses the word “exhibits” rather than “documents,” Prop Tech’s use of the modifier “previously withheld” immediately after “exhibits” makes sense only if Prop Tech’s request is interpreted as referring to all documents withheld as privileged. Furthermore, Prop Tech’s reply makes clear that it was seeking production of all documents on which Carbo was claiming the attorney-client privilege, based on Carbo’s assertion of reliance on counsel as a defense. Nevertheless, the majority somehow concludes that the phrases “all other documents” and “all other exhibits previously withheld” refer only to additional copies of the Shalen letter. Even if this interpretation was reasonable, it is certainly not the only reasonable interpretation. Accordingly, Carbo *381has not demonstrated an abuse of discretion by the trial court necessary to justify mandamus relief. See In re Meador, 968 S.W.2d 346, 353 (Tex.1998) (“A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner....”); Walker, 827 S.W.2d at 839.

The majority further concludes that, even if Prop Tech requested production of documents other than the Shalen letter, Carbo was not required to support its privilege claim as to those documents because Prop Tech’s request was based on waiver and not a “specific challenge to the privileged nature of any document.” However, nothing in the language of Rule 193.4 suggests that the burden on the party asserting the privilege applies only when the other party attacks the underlying basis of the privilege claim. Nor does the rule require that the party opposing the privilege claim identify each individual document for which production is sought. Prop Tech filed a motion requesting production of all documents withheld as privileged and requested a hearing. Accordingly, under Rule 193.4, Carbo was required to present to the trial court evidence to support its privilege claim as to those documents. Because Carbo apparently did not present any evidence with respect to documents other than the Shalen letter, Carbo has not demonstrated the trial court abused its discretion in ordering production of those documents.

The court’s order in this case is easily distinguishable from that in National Union Fire Insurance Co. v. Hoffman, 746 S.W.2d 305 (Tex.App.—Dallas 1988, orig. proceeding). In Hoffman, the court determined that a finding of waiver as to “all communications, knowledge and opinions” was unworkable, and thus an abuse of discretion. Id. at 311. Here, however, the court’s order is limited to “documents previously withheld on the grounds of attorney client privilege.” The scope of the trial court’s order is clear, and it conforms to the relief requested by Prop Tech. Accordingly, I would deny relator’s petition for mandamus relief. Because the majority grants relief in part, I respectfully dissent.