in Re: Matthews, Lawson, Bowick & Al-Azem, PLLC

Petition for Writ of Mandamus Denied and Opinion filed April 20, 2006 Petition for Writ of Mandamus Denied and Opinion filed April 20, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-01193-CV ____________ IN RE MATTHEWS, LAWSON, BOWICK & AL-AZEM, PLLC, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS O P I N I O N On November 28, 2005, relator Matthews, Lawson, Bowick & Al-Azem, PLLC (the AFirm@), filed a petition for writ of mandamus and a motion for an emergency stay,[1] seeking relief from a discovery order compelling production of documents relating to its legal representation of Vatco, Inc. d/b/a pHoenix Electrode Company (AVatco@). We granted the motion for emergency relief on that date and stayed the proceedings pending a decision on relator=s mandamus petition. Based on the record before us, we conclude relator has failed to establish that it is entitled to the requested relief. We deny relator=s petition for writ of mandamus and lift the stay entered on November 28, 2005. I. Factual and Procedural Background The action underlying this mandamus proceeding involves a derivative suit filed by Real party in Interest Wilma Van London, individually and on behalf of Vatco (hereinafter AVan London@), against Raymond Burchette, his wife, and a company owned by the Burchettes. Wilma Van London is a fifty percent shareholder of Vatco, and Raymond Burchette is the remaining fifty percent shareholder; both sit on Vatco=s board of directors. In August 2005, approximately two years after the Van London suit was filed, Burchette directed the Firm to file two derivative suits on Vatco=s behalf against Wilma Van London, her son, Kurt Van London, and The Van London Company, alleging, in part, unfair competition and misappropriation of Vatco products and formulas (hereinafter Athe Burchette suits@). Van London sought discovery from the Firm regarding the Burchette suits. The Firm filed a response, asserting the attorney-client and work product privileges, and filed a motion for protective order. Van London responded, arguing, in part, that she was entitled to the discovery as a member of Vatco=s board of directors and as a fifty percent shareholder of the corporation. After a hearing, the trial court ordered the Firm to produce documents relating to its representation of Vatco, Aincluding but not limited to . . . the entirety of the [Firm=s] litigation file relating to the investigation and/or prosecution of@ the Burchette suits. The Firm filed its petition for writ of mandamus. II. Standard of Review Mandamus is an Aextraordinary remedy which undermines the normal appellate process.@ In re AIU Ins. Co., 148 S.W.3d 109, 121B22 (Tex. 2004) (5B4 decision) (Phillips, C. J., dissenting). Its use is generally reserved for Avery special circumstances,@ issuing only to correct a clear abuse of discretion and when there is no other adequate remedy by law. Id. at 122; see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135B36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992). The party seeking mandamus relief has the burden of providing a sufficient record to establish its right to the relief. Walker, 827 S.W.2d at 837. Also, although mandamus is not an equitable remedy, it is largely governed by equitable principles. Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). III. Discussion In its petition, the Firm contends the trial court=s discovery order, in its entirety, is an abuse of discretion as a matter of law, asserting that any order compelling production of an attorney=s Aentire file@ is erroneous under National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993). The Firm also argues that Van London is not entitled to the documents because she is an Ainterested shareholder@ under Article 2.35-1(A) of the Business Corporations Act.[2] Any party may request a hearing on a claim of privilege, and the party asserting the privilege must present evidence necessary to support the privilege. Tex. R. Civ. P. 193.4(a); In re Maher, 143 S.W.3d 907, 913 (Tex. App.CFort Worth 2004, orig. proceeding); In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding). Proof of the privilege may consist of testimony presented at a hearing or by affidavits. Tex. R. Civ. P. 193.4(a). Here, although Van London challenged the Firm=s assertion of the privileges and a hearing was held on the Firm=s motion for protective order, we cannot determine from the record before us whether the Firm provided any evidence in support of the claimed privileges or produced any documents for the trial court=s review.[3] There is no privilege log in the record and no indication that the Firm offered any of the objected-to documents at the hearing. In short, there is no evidence in the record by which this Court can determine whether the trial court=s order constitutes an abuse of discretion. We recognize the Texas Supreme Court=s holding in National Union, that an attorney=s Aentire file@ is work product protected under our Rules of Civil Procedure. 863 S.W.2d at 461. But, in National Union the party resisting discovery produced the subject documents for in camera inspection and a record existed. Id. at 459B60. Here, the Firm has failed to provide a sufficient record establishing its right to the relief sought. Moreover, this Court previously has rejected the Firm=s argument here, that National Union bars, as a matter of law, any discovery order regarding an attorney=s entire file. See Lewis v. Wittig, 877 S.W.2d 52, 57B58 (Tex. App.CHouston [14th Dist.] 1994, orig. proceeding). An order compelling production of an attorney=s file does not relieve a relator from establishing his entitlement to mandamus relief. Cf. id. The Firm also fails to establish that Van London is precluded from obtaining the requested discovery based on Article 2.35-1(A) of the Business Corporation Act. IV. Conclusion In sum, there are no documents in the record or other evidence which supports the conclusion that the trial court=s discovery order is a clear abuse of discretion.[4] Accordingly, we deny the Firm=s petition for the writ of mandamus and withdraw our previous order staying the proceedings below. /s/ J. Harvey Hudson Petition Denied and Opinion filed April 20, 2006. Panel consists of Justices Hudson, Frost, and Seymore. [1]See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1, 52.10(a). [2]See former Tex. Bus. Corp. Act Ann. art. 2.34-1(A) (Vernon 2003 & Supp. 2005), repealed and recodified by Acts of 2003, 78th Leg., R.S., ch. 182, ' 1, 2003 Tex. Gen. Laws 267, as Tex. Bus. Org. Code, '' 1.001B402.014. The Texas Business Corporation Act was recodified as the Business Organizations Code, effective January 1, 2006. The amended Code is not applicable to this suit. [3]The Firm does not argue that the attorney-client privilege specifically applies nor does the Firm refer to any particular documents; therefore, we limit our discussion to the work-product privilege generally, as does the Firm. [4]We note, prior to the trial court=s November discovery order, in October 2005, the parties signed an Agreed Order, concerning the appointment of a fifth director to the Vatco board, which would permit a determination by Vatco=s board as to whether the Burchette suits can go forward. However, the Agreed Order states that no vote by the directors concerning the Burchette suits may take place until: thirty days after the later of (1) a final, nonappealable judicial determination of the entitlement of the directors of Vatco to review the investigative and litigation files of [the Firm] regarding both actions or (2) the production by [the Firm] of any documents ordered to be produced by the Court. By virtue of the appointment of a fifth director, any issues concerning the prosecution of the Burchette suits should be unaffected by our ruling on the Firm=s mandamus petition.