Motion to Reconsider Order on Motion to Compel ‘Log’

TAYLOR v. 831 NORTH CENTRAL PARKWAY, LLC

Summary: This case involved a child’s fall from a rock climbing wall at a family entertainment facility.  The mother of the injured child prepared an “injury log” at the direction of her attorney with the understanding that it was a confidential attorney-client communication that would be used to help represent her and her child in the case.  The Defendants in the case filed a motion (which was granted by the Court) to compel the Plaintiffs to disclose the “injury log”, and were also seeking to re-depose the Plaintiffs to question them about the contents of the log.  The following motion was submitted by Heygood, Orr & Pearson, counsel for the Plaintiffs, to request that the Court reconsider its ruling on the discoverability of the “log” and order that the document be returned and not used in the litigation.

CAUSE NO. 401-4023-2013
RENAE TAYLOR and MATT TAYLOR,
individually, and on behalf of and as next
friend for CORA TAYLOR, a minor.Plaintiffs,

vs.

831 NORTH CENTRAL PARKWAY, LLC
and AMAZING JAKES, in its assumed or
common name,

Defendants.

IN THE DISTRICT COURT401ST JUDICIAL DISTRICT

COLLIN COUNTY, TEXAS

MOTION TO RECONSIDER ORDER ON MOTION TO COMPEL “LOG”

Plaintiffs file this motion to reconsider the Court’s order on Defendant’s motion to compel a “log” prepared by Plaintiff for her attorney and respectfully show the Court as follows:

I. BACKGROUND

Plaintiffs objected to producing an injury log that had been prepared by Plaintiff at the direction of her attorney and for the purpose of communicating information solely to her attorney so that her attorney could help represent her in this litigation. On October 21, 2014, the Court granted Defendants’ motion to compel and ordered Plaintiff “to disclose the injury log.” Defendants are now seeking to re-depose the Plaintiff to question her about the “log.” Plaintiff respectfully submits this request for the Court to reconsider its prior ruling on the discoverability of the “log.”

II. STATEMENT OF FACTS

The essential facts are undisputed. Plaintiff Renae Taylor’s attorney requested that she keep a log of the impact of her daughter’s injuries on her daily life and that the log would be a confidential attorney client communication from Ms. Taylor to her attorney. See Affidavit of Renae Taylor, attached hereto as Exhibit A. Ms. Taylor prepared the log at the request of her attorney and sent it to him. Id. When Ms. Taylor prepared the log, she expected and relied upon the fact that it would be a confidential communication. Id. When she sent it to the undersigned attorney, she expected and relied upon the fact that it would be a confidential communication. Id.

III. THE ATTORNEY-CLIENT PRIVILEGE

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client … between the client or a representative of the client and the client’s lawyer or a representative of the lawyer[.]” TEX. R. EVID. 503(b)(1)(A). “A communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Id., at 503(a)(5).

IV. ARGUMENT

Every day litigants of all shapes and sizes throughout Texas and elsewhere communicate “facts” and “statements” to their own lawyers (and often do so in writing) with the expectation that such communications are protected from disclosure by the attorney-client privilege. Plaintiff’s “log” prepared at the request of her own attorney and sent by her to her own attorney for the sole purposes of facilitating the rendition of legal services in this case should be privileged.

Defendants have suggested the “log” should be considered a “witness statement” by a party that should have been produced prior to Plaintiff’s deposition. However, attorney-client communications are not “witness statements.” Indeed, as several Texas courts have recognized, if a client’s written statements to his/her/its attorney about pending litigation were considered “witness statements,” there would barely be an attorney-client privilege.

It is certainly true that “[a] party may obtain discovery of the statement of any person with knowledge of relevant facts—a ‘witness statement’—regardless of when the statement was made.” TEX.R. CIV. P. 192.3(h). “Comment nine to the rule, however, instructs that this broad rule applies only to non-privileged statements: ‘[e]limination of the ‘witness statement’ exemption does not render all witness statements automatically discoverable but subjects them to the same rules concerning the scope of discovery and privileges applicable to other documents or tangible things.’” In re Fontenot, 13 S.W.3d 111 (Tex. App.—Fort Worth 2000, orig. proceeding), quoting TEX.R. CIV. P. 192.3(h), cmt. 9 (emphasis added). In other word, if a “statement” is privileged under the attorney-client privilege, the “statement” is privilege, not discoverable. Id.

In re Fonentont may be the closest Texas reported case to the facts before the Court. In that case, Dr. Fontenot received notice of a claim against him for medical malpractice. 13 S.W.3d at 111. In response, Dr. Fontenot wrote a series of letters to his liability insurance carrier and copied the lawyer that had been retained by his carrier to represent him. Id. The letters included, for example,, a narrative written by Dr. Fontenot of his medical treatment of the patient at issue. Id. A medical malpractice suit was eventually filed, and the plaintiff moved to compel Dr. Fontenot to produce the letters, arguing they were “witness statements.” Id. The court of appeals rejected the plaintiff’s argument, for the same reasons this Court should reconsider its prior ruling:

[Dr. Fontenot] contend[s] that the letter and claim form are privileged because they are confidential communications between a client, a client’s attorney, and a client’s representatives for the purpose of facilitating the rendition of professional legal services to the client. See Tex.R. Evid. 503(b)(1)(B) & (D). We agree.

[…] Here, it is undisputed that Dr. Fontenot was communicating directly with his attorney when he copied the April 30 the letter to Kuehler. See Tex.R. Evid. 503(a)(1). And the evidence shows that both the letter and claim form were provided to TMLT as a representative of the client. See Tex.R. Evid. 503(a)(2). To adopt Jones’ broad interpretation of the witness-statement rule would make all witness statements discoverable and would effectively abrogate the attorney-client privilege. The attorney-client privilege is one of the oldest privileges recognized by the common law, see Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647 (Tex.1995), and we believe that if the Texas Supreme Court had intended to eliminate the attorney-client privilege as it applies to witness statements it would have expressly done so.

[…] The plaintiff/claimant in these types of cases can still obtain discovery of the facts known to the physician without invading the protection afforded by the attorney-client privilege.

[…] We hold that Dr. Fontenot’s communications with attorney Kuehler and with TMLT were privileged attorney-client communications and were thus exempt from discovery as witness statements.

In re Fontenot, 13 S.W.3d at 113-14 (emphasis added)

Similarly, a “statement” given by an insured driver concerning an auto accident to an adjuster for the insured’s auto liability carrier was held to be a privileged attorney-client communication in In re Arden, 2004 WL 576064 (Tex. App.—El Paso 2004, orig. proceeding.). The court held the statement was privigled because the adjuster was acting as the insured’s “representative” and the statement was made for the purpose of facilitating the rendition of professional legal services to the insured. In In re Arden the primary issue was whether the adjuster was a “representative” for purposes of the attorney-client privilege Id. In other words, the court of appeals —and the parties—clearly accepted that a such statement prepared at the direction of and for one’s attorney would be privileged. See Id., citing In re Fontenot, 13 S.W.3d at 113-14.

The same basic issue was raised in In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). The case involved a dispute between the State of Texas and Exxon. The State argued that “facts” and “statements” should not be protected by the attorney-client privilege. The court of appeals rejected the argument and held that the entire documents were protected from disclosure:

Order No. 6 also requires production of a portion of document 9760 because it contains a witness statement. The order allows redaction of all but the third paragraph, which the court characterizes as “a witness statement because it recounts a conversation between Chas. Ehrhardt [an Exxon employee] and Lloyd Merrick with the Railroad Commission.”

[…] [T]he issue before us, as raised in the petition, is whether the trial court abused its discretion in ordering the production of part of a privileged document merely because that part contained a witness statement. As held in Fontenot, a witness statement contained within a confidential communication between attorney and client is privileged and protected from discovery. 13 S.W.3d at 114. The State can obtain information concerning conversations with the witnesses by means other than invading the privilege.

[…] [T]he trial court failed to follow case law holding that witness statements contained within a confidential communication between attorney and client are privileged. Accordingly, we find the trial court abused its discretion in ordering production of a redacted version of document 9760.

Id.

As these cases help illustrate, it does not matter whether a confidential attorney-client communication contains a “witness statement” or “facts”—the entire document is privileged from discovery. “The attorney-client privilege, however, attaches to the complete communication between attorney and client, including both legal advice and factual information.” In re ExxonMobil Corp., 97 S.W.3d at 357 (emphasis added), citing Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996); see also Corning Corp. v. Caldwell, 861 S.W.2d 423, 425 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding) (holding that if a document is a confidential communication, the privilege extends to the entire document).

The subject matter of the information communicated is irrelevant when determining whether the privilege applies. […] The privilege attaches to legal advice and factual information included in completed communications between attorney and client. […] A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made “in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. App.—Tyler 2013, orig. proceeding) (internal citations omitted).

It is certainly true that a “person cannot cloak a material fact with the privilege merely by communicating it to an attorney. However, this does not mean that the factual matters must be produced by producing the privileged communication containing the facts.” In re Toyota Motor Corp., 94 S.W.3d 819, 822 (Tex. App.—San Antonio 2002, no pet.) (emphasis added). Rather, as the cases illustrates, such “[f]actual information may be obtained by means other than the required production of privileged documents.” In re ExxonMobil Corp., 97 S.W.3d at 358; see also id. at 359 (“[E]ven if relator does not have non-privileged documents with the factual information found in document 7443, invasion of the attorney-client privilege is not warranted or required.”); In re Fontenot, 13 S.W.3d at 114 (“The plaintiff/claimant in these types of cases can still obtain discovery of the facts known to the physician without invading the protection afforded by the attorney-client privilege.”).

Plaintiffs respectfully submit that the log is a “confidential communication made for the purpose of facilitating the rendition of professional legal services to the client … between the client or a representative of the client and the client’s lawyer or a representative of the lawyer[.]” TEX. R. EVID. 503(b)(1)(A). “The subject matter of the information communicated is irrelevant when determining whether the privilege applies” because “[t]he privilege attaches to legal advice and factual information included in completed communications between attorney and client.” In re Park Cities Bank, 409 S.W.3d at 869. Just as Dr. Fontenot’s “narrative” of his medical treatment of the patient at issue was privileged, so too should Plaintiff’s communication of the facts of her case to her lawyer be privileged. See In re Fontenot, 13 S.W.3d at 113-14.

Without exception, Texas case law supports Plaintiff’s position that the log prepared at the request of her own attorney and sent by her to her own attorney for the sole purposes of facilitating the rendition of legal services in this case should be privileged. Any “facts” can and should be discovered by other means. Plaintiffs’ position is further supported by considerable case law from around the country—all dealing with the same fundamental conception of the attorney-client privilege. Indeed, “where the document is created solely as a means of communication between the client or attorney, it has never been doubted that the document is privileged. 24 Fed. Prac. & Proc. Evid. § 5484 (1st ed.), citing Wigmore, Evidence, McNaughton rev. 1961, § 2307, p. 594; Sneider v. Kimberly-Clark Corp., D.C.Ill.1980, 91 F.R.D. 1, 7; People v. Swearingen, Colo.1982, 649 P.2d 1102, 1105; U.S. v. Rainone, C.A.7th, 1994, 32 F.3d 1203, 1206 (notes prepared for use of JD); Sperling v. Kennesaw Police Dept., D.C.Ga.2001, 202 F.R.D. 325, 327 (“narrative” of her version of events written to assist counsel in answering interrogatories; privileged); Clark v. Buffalo Wire Works Co., Inc., D.C.N.Y.1999, 190 F.R.D. 93, 96 (even though prepared before attorney is retained); Hiskett v. Wal-Mart Stores, Inc., D.C.Kan.1998, 180 F.R.D. 403, 405 (client fills out form titled “Possible Case Intake”; privileged); Mason C. Day Excavating, Inc. v. Lumbermens Mutual Casualty Co., D.C.N.C.1992, 143 F.R.D. 601, 607 (diary kept for litigation on advice of JD); Solomon v. Scientific American, Inc., D.C.N.Y.1988, 125 F.R.D. 34, 36 (client intake memo); Broderick v. Shad, D.C.D.C.1987, 117 F.R.D. 306, 308 (narrative summary of events for JD); Lemonik v. Eastern Airlines, Inc., Fla.App.1994, 632 So.2d 239 (notes and diagram made to refresh memory prior to JD interview); Wiedemann v. Wiedemann, 984 So. 2d 235, 238 (La. Ct. App. 5th Cir. 2008) (written correspondence between wife and attorney regarding possible separation from husband privileged); Ferrell v. Ferrell, 1986, 719 P.2d 1, 6, 11 Kan.App.2d 228 (letter to JD re settlement); Coyle v. Estate of Simon, 1991, 588 A.2d 1293, 1295, 247 N.J.Super. 277 (written statement of facts of claim).Comment c, A.L.I., Restatement (Third) of the Law Governing Lawyers, 2000, § 69 (tape recording made for lawyer with client’s version of the facts); see also Hannan v. St. Joseph’s Hosp. & Med. Ctr., 318 N.J. Super. 22, 722 A.2d 971 (App. Div. 1999) (chronology of events in form of “notes” prepared by medical malpractice plaintiff relating to care received during his treatment was protected by attorney-client privilege); Matter of Will of Pretino, 150 Misc. 2d 371, 373-74, 567 N.Y.S.2d 1009, 1011-12 (Sur. 1991) (diary prepared by objectant to will, which documented objectant’s relationship with deceased, was confidential communication protected by attorney-client privilege where objectant was directed to prepare diary by her lawyer in connection with probate proceeding); Carter v. State, 2003, 817 A.2d 277, 282, 149 Md.App. 509 (documents prepared by client at request of lawyer; privileged); Todd v. State, Nev.1997, 931 P.2d 721, 725, 113 Nev. 18 (account of event written by client at request of lawyer considering whether or not to represent client); Moore v. Tri–City Hosp. Auth., 118 F.R.D. 646, 649–50 (N.D.Ga.1988) (plaintiff’s diary, containing notes that neither party disputed would be considered work product for an attorney, was determined to be work product); Allstate Ins. Co. v. Ever Island Elec. Co., No. CIV.A. 1:03-CV-3817-, 2007 WL 2728979, at *6 (N.D. Ga. Sept. 17, 2007) (Having referred the claim to counsel, litigation was imminent, or at least likely. Entries in the adjuster’s diary made after this date were thus prepared “in anticipation of litigation” and constitute protected work product. ); Freshwater v. Freshwater, 654 So. 2d 1271 (Fla. 3d DCA 1995) (diaries prepared at the direction of wife’s counsel were privileged); Roe v. Roe, 253 N.J.Super. 418, 601 A.2d 1201 (App.Div.1992) (diary written at attorney’s direction detailing events occurring between the attorney’s client and her husband was privileged); In re DAYCO Corp. Derivative Securities Litigation, 102 F.R.D. 468 (S.D. Ohio 1984) (diary compiled by employee at direction of counsel fell under both attorney client and work product privileges); Snyder v. Value Rent-a-Car, 736 So. 2d 780 (Fla. 4th DCA 1999) (diary kept by spouse of personal injury victim documenting her husband’s medical appointments, care and condition for purposes of communicating same to their attorney held privileged).

V. CONCLUSION AND PRAYER

Plaintiffs respectfully request that the Court grant this motion to reconsider its ruling on the “log” and order that the document (both the calendar and legal pad) be returned and not used in this litigation.

Respectfully submitted,

/s/ James Craig Orr, Jr.
James Craig Orr, Jr.
State Bar No. 15313550
jim@hop-law.com
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
2nd Floor
Dallas, Texas 75220
214-237-9001 Telephone
214-237-9002 Facsimile
ATTORNEYS FOR PLAINTIFF