Weisel Enterprises, Inc. v. Curry

OPINION

DIAL, Justice.

Realtor brought this original mandamus proceeding following an order of the trial court denying a pre-trial motion for an in camera inspection of certain documents. Relator is the plaintiff in a suit against Builders Square, Inc., for trademark infringement and unfair competition. Following two discovery hearings, the trial court entered an order on discovery on April 22, 1986. Included in this order, and pertinent to this original proceeding, was this pronouncement of the court:

f. In the event that Plaintiff believes that any of the documents listed as privileged on the lists of privileges documents already produced by Builder’s Square should be produced, then Plaintiff may request a separate hearing with respect to any claim of privilege. This court intimates no opinion at this time on any assertions of privilege.

On May 2, 1986, relator filed a “Motion for In Camera Inspection of Documents Defendant Alleged to be Privileged.” Relator asserted that the court was required to examine the documents in camera to determine whether Builders Square’s claims of attorney-client privilege and the attorney-work product rule were applicable to the documents.

On May 14, 1986, Builders Square filed a response to the motion for in camera review. Attached to this response was a revised list of documents alleged to be privileged. Each document was generally identified as to subject matter, author and recipient.

On May 15, 1986, a hearing on relator’s motion was held before respondent, the Honorable Peter Michael Curry, Judge Presiding. Relator appeared, as well as did Builders Square with the documents sought. After listening to the arguments presented by both sides, the trial court denied relator’s motion.

The narrow issue presented by relator’s complaint in this cause is whether the trial court’s action in denying discovery, without first conducting an in camera inspection of the documents themselves, constitutes an abuse of discretion.

The writ of mandamus may be issued when there has been a clear abuse of discretion. State v. Sewell, 487 S.W.2d 716 (Tex.1972). Additionally, the burden of establishing a clear abuse of discretion is upon the relator. See Id. at 718. In order to constitute an abuse of discretion, the action complained of must amount to fraud, or caprice or must be a purely arbitrary decision without reason. Professional Microfilming, Inc. v. Houston, 661 S.W.2d 767, 769 (Tex.App.—Fort Worth 1983, no writ).

Relator asserts that the trial court was required to hold the in camera inspection before it could act on the hearing on its motion and relies upon the decision in Peeples v. Hon. Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985) for support.

In Peeples v. Hon. Fourth Supreme Judicial District, 701 S.W.2d at 637 the court held:

We hold that any party who seeks to exclude documents, records or other matters from the discovery process has the affirmative duty to specifically plead the particular privilege or immunity claimed and to request a hearing on his motion. THE TRIAL COURT SHOULD THEN DETERMINE WHETHER AN IN CAMERA INSPECTION IS NECESSARY. IF SUCH INSPECTION IS ORDERED by the trial court, those materials for which the inspection is sought must be *52segregated and produced to the court. Failure to follow the above procedure constitutes a waiver of any complaint of the trial court’s action.
(Emphasis added)

From the foregoing holding in Peeples v. Hon. Fourth Supreme Judicial District, supra, it is clear that the trial court does not have a mandatory duty to conduct an in camera inspection prior to making a ruling. Whether to conduct or not to conduct an in camera inspection of the documents claimed to be privileged is purely an exercise of discretion. Here the trial court had. the pleadings of the parties before it including a list summarily describing each and every document sought to be discovered. While the better practice would have been to have Builders Square’s response, including the list, verified or supported by affidavit. If used as evidence, the consideration of the list by the trial court in deciding whether or not to proceed to an in camera inspection was not a clear abuse of discretion. Cf. Turbodyne Corp. v. Heard, 698 S.W.2d 703 (Tex.App.—Houston [14th Dist.] 1985, no writ).

The application for writ of mandamus is denied.