The Business Court has rejected an investment entity’s assertion of the work product privilege for notes taken by one of its representatives of a phone call with a former employee of the entity’s opponent in the litigation.
Synergy Thermogen, Inc. and Synergy Automaton LLC v. Blackbrush Oil & Gas, L.P., et al.; Synergy NC Investment LLC v. Synergy Thermogen, Inc. (2026 Tex. Bus. Ct. 47; July 16, 2026) arose from a dispute between a developer of clean energy technology and an oil and gas exploration company over agreements to deploy and test the developer’s (Synergy’s) technology. The parties fell out, and Synergy sued Blackbrush in the Business Court. On October 28, 2025, a former Synergy employee called an agent of Blackbrush to discuss the lawsuit. The agent reported the conversation to representatives of Synergy NC Investment, an entity created by Blackbrush to invest in Synergy. One of the representatives contacted the employee, who spoke with the three representatives. NC Investors’ counsel instructed the NC representative to take notes during the conversation, which were transcribed and sent to the lawyer for review.
Synergy first learned about the notes during a deposition of one of the NC Investors’ representatives, Mezey. NC Investors contacted Synergy “to provide general context about what was discussed during the November call.” That wasn’t good enough for Synergy, which wanted the notes themselves. NC Investors invoked work product privilege. After a hearing, the court instructed the parties to advance the issue to the letter writing stage. During a subsequent hearing and status conference, the court asked NC Investors to provide an in camera copy of the notes.
In an opinion by Judge Whitehill, the court determined the work product privilege didn’t apply to the notes. In general, “any work product containing either ‘the attorney’s or the attorney’s representative’s mental impressions, opinion, conclusions, or legal theories—is not discoverable.’ This is called ‘core’ or ‘opinion’ work product” (citations omitted). As for “noncore” or “ordinary” work product, a party may get discovery by showing “(i) a substantial need for the materials and (ii) [the inability] to obtain their substantial equivalent without undue hardship.” NC Investors argued that the notes were core work product or, at least, noncore work product. Synergy obviously disagreed.
NC Investors based its position on the fact that its lawyer told the representative to take notes so that he could provide legal advice to NC. But did the notes “contain an attorney’s or attorney’s representative mental processes”? In this case, “an attorney or an attorney’s representative did not create the notes nor was an attorney.” None of the three NC representatives on the call were “employed by the lawyer to assist in the rendition of professional services or an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.” Upon examination, moreover, the court determined that the notes only summarized the issues discussed on the call “and lack mental impressions, opinions, conclusions, or legal strategies and are instead like traditional board meeting minutes.” Clearly, the court found, the notes did not constitute core work produce.
Nor did they constitute noncore work product. The NC representatives filed affidavits that provided “prima facie evidence that the notes were ‘material prepared … in anticipation of trial’ and so qualify as noncore work product.” Consequently, Synergy had to show a substantial need and undue hardship. As to substantial need, Synergy contended that the former employee was privy to Synergy’s confidential and privileged information, and they needed the notes to determine to what extent he may have disclosed it. That was enough for the court. Synergy also showed undue hardship because in depositions of three of the four participants on the call, “none could remember specifics about the call even when given opportunities to refresh their recollections” (imagine that). NC responded that Synergy didn’t depose the guy who actually took notes. The court, however, observed that “no deposition testimony gathered before discovery closed mentioned that he was a call participant. And Synergy formally learned that Ward was on the call only after discovery closed and he filed an affidavit to that effect.” Given the apparent effort to avoid having Ward deposed while discovery was open, the court concluded that it would be an undue hardship to Synergy to have to do it now. The notes were thus discoverable.
NC Investors raised another argument that it shouldn’t be forced to produce the notes “on the bases that (i) litigation funding is not privileged and (ii) even if it were privileged, Synergy waived that privilege.” We’re not sure what NC was talking about here, but the court determined that “whether litigation funding is privileged is not germane to protecting the notes from production as Synergy has generally demonstrated a substantial need to uncover whether Walker disclosed any of its privileged information.” The court ordered NC Investors to produce the notes under “Attorneys” Eyes Only” designation pursuant to the parties’ agreed protective order.
