In a case involving the application of TRCP 193.3 and waiver of attorney client privilege, the Houston [1st] Court of Appeals has granted mandamus relief ordering a trial court to vacate a motion to compel discovery of privileged documents.
In re Halliburton Energy Services, Inc. (No. 01-22-00009-CV) arose from a dispute between Halliburton and a contractor (Harris Machining, LLC). Halliburton sued Harris seeking a declaratory judgment that the parties’ agreements remained in full force and effect. Harris filed counterclaims and served requests for document production, to which Halliburton responded with a general objection to the extent that documents constituted privileged attorney-client or attorney work product. Harris requested a list of documents and a privilege log of documents Halliburton claimed were privileged. Halliburton promptly replied that it would supply a privilege log once it had substantially completed its production of the requested documents. Several exchanges ensued over following 18 months. After Halliburton provided the privilege log, Harris filed a motion to compel, asserting that the privilege log was untimely and insufficient under TRCP 193.3 and that Halliburton thus waived privilege. After hearing, the trial judge granted the motion. Halliburton filed a petition for writ of mandamus.
In a memorandum opinion, the court of appeals conditionally granted the writ. The court considered two issues: (1) did Halliburton comply with Rule 193.3(b), which requires a party withholding documents under a privilege to respond within 15 days, describe materials withheld, and assert specific privilege for each item; and (2) did Halliburton waive privilege. Halliburton argued that it never waived privilege and that, in any event, Rule 193.3 did not apply until it had substantially completed the production request and identified which documents were privileged. The court of appeals agreed. In its initial response to Harris’s request for production, Halliburton merely objected “to the extent” that documents were privileged; it did not state that it was withholding documents (i.e., a withholding statement). Thus Harris’s request for a privilege log was premature and the 15-day deadline was not triggered. To the extent the trial court ruled that Halliburton’s failure to comply with Rule 193.3 waived its claim of privilege constituted an abuse of discretion.
More generally, the court of appeals found no indication that Halliburton ever waived the privilege, whether it complied with Rule 193.3 or not It informed Harris at the outset that it would produce a privilege log once it completed the production request, which it did, and after Harris objected to the sufficiency of the log, it served two supplemental logs and a letter indicating that it had withheld certain privileged documents. Noting that the discovery rules intentionally make it difficult to waive privileges—the TRCP nowhere set a time limit for asserting a privilege—the court of appeals made it pretty clear that a party trying to establish waiver has to meet a very high bar indeed.
This is the kind of policing that intermediate appellate courts have to do every day, and more evidence (if we need any) that our appellate courts perform one of the most important, if not the most important, functions in a republican form of government: safeguarding the rule of law.
