As we reported nearly a year ago, a deeply divided Texas Supreme Court lifted an emergency stay and denied the relator’s petition for a writ of mandamus to block a trial court order compelling her to turn over a video to opposing counsel’s lawyer that she asserts could expose her to federal criminal prosecution. After hearing from several amici, including a group of Texas legislators, in support of the relator’s motion for rehearing, however, the Court once again issued an emergency stay while it awaits a response to the motion. On the final day of this year, an apparently unanimous Court conditionally granted the writ
As you may recall, the facts of In re Magdoline Elhindi (No. 23-1040; granted December 31, 2024) are as follows. An attorney had a sexual relationship with his client. He videotaped one such encounter without the client’s knowledge. He then sent her a copy of the video. He also sent it to a friend of his, again without his client’s knowledge or consent. Client filed suit. The trial court entered an Agreed Mutual Temporary Injunction barring further distribution of the video by either party. Subsequently, attorney served client with requests for production, including any video of the attorney taken during a three-year date range. Client objected to the request for a video she alleged was unlawful in nature. This video, sent by attorney to client during their relationship, purported to show, according to attorney, attorney having sex with a 14-year-old girl in Egypt. Attorney moved to compel production of the video. At the hearing, client asserted that producing the video would violate federal law. Attorney argued that the video did not constitute child pornography. The trial court ordered production.
Subsequent to the trial court’s order, the FBI contacted client seeking the video. Client filed a motion for leave to release the video to the FBI. The trial court agreed to grant leave once client turned over the video to attorney. Client objected again, but the trial court denied the objection. The Houston [14th] Court of Appeals denied client’s petition for writ of mandamus. Client sought mandamus relief from SCOTX.
In her petition, Client argued that producing the video would violate 18 U.S.C. § 2252A, which makes it a felony to receive or distribute child pornography in interstate or foreign commerce. Client asserted that she is essentially damned if she does and damned if she doesn’t, since she may be in violation of the law by possessing the video in the first place and will be in violation of the law if she turns it over to attorney. She also pointed out that the only thing she can legally do with the video is give to law enforcement, but the trial court has blocked that option. Finally, she contended that she is perfectly willing to provide the video to the FBI for a determination of whether it constitutes child pornography. If the FBI determines that it does not, she will hand it over pursuant to the trial court’s order.
Five justices of the Court rejected these arguments. In a strongly worded dissent, Justice Young, joined by Justices Lehrmann, Blacklock, and Devine, would have granted the petition on the basis that the district court abused its discretion by ordering the relator to turn the video over to opposing counsel before giving it to the FBI for a determination of whether it contains child pornography. A legislative firestorm ensued, and the Court reissued the stay to reconsider the case.
On reconsideration a per curiam court granted mandamus relief. The Court held that the trial court erred when it ordered Client to produce the video before “determining itself that the video is not [child sexual abuse material or CSAM] or permitting law enforcement to make such a determination … Under these facts, compelling discovery before a CSAM determination risks further harm to the alleged minor” (citations omitted). Regardless of whether producing the video constitutes a crime, the Court stated, “a delay for law enforcement to make a CSAM determination presents little burden to the discovery process for claims admittedly not involving the individual depicted in the video.” Consequently, the Court ruled that the burden of immediately producing the video outweighed the likely benefit of doing so under TRCP 192.4(b).
