Petition for Writ of Mandamus Denied and Memorandum Opinion filed February
23, 2012.




                                                    In The

                            Fourteenth Court of Appeals
                                               ____________

                                          NO. 14-12-00045-CV
                                            ____________

      IN RE G. CHRISTIAN CORCORAN and PEGGY CORCORAN, Relators


                                   ORIGINAL PROCEEDING
                                     WRIT OF MANDAMUS
                                        125th District Court
                                       Harris County, Texas
                                 Trial Court Cause No. 2009-41594


                           MEMORANDUM                             OPINION

        On January 20, 2012, relators G. Christian Corcoran and Peggy Corcoran filed a
petition for writ of mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex.
R. App. P. 52. Relators ask this court to direct the respondent, the Honorable Kyle Carter,
presiding judge of the 125th District Court of Harris County, to vacate his written order
signed January 9, 2012, denying relators’ motion to compel answers to deposition
questions and grant the motion.

        The deposition of one of the real parties in interest, Cynthia Jones, was taken on
March 29, 2010, almost two years ago.1 Relators assert that the trial court improperly

1
  No explanation if offered for the delay. Mandamus relief may be denied to a party for lack of diligence. In re
Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999).
permitted Cynthia to claim the spousal privilege to refuse to disclose communications with
her husband, Rod, about an incident at issue in the underlying litigation. See Tex. R. Evid.
504(a) (setting out the husband-wife privilege for confidential communications). 2
Because the Joneses filed claims for affirmative relief against relators, relators assert that
Cynthia’s refusal to answer is an improper offensive use of the spousal privilege. 3
Relators moved to compel the answers to these and other questions, and the trial court
signed a written order on January 9, 2012, granting some of the relief sought, but denying
relief on the questions related to spousal communications and Cynthia’s observations of a
videotape. The order does not state the basis for the rulings.4 No record of a hearing on
the motion to compel is included with relators’ petition.5

         Mandamus will issue to correct a discovery order if the order constitutes a clear
abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline
Co., 968 S.W.2d 938, 941 (Tex. 1998). Mandamus relief may be justified when: (1) the
appellate court would not be able to cure the trial court’s discovery error, such as when
privileged information or trade secrets would be revealed or production of patently
irrelevant or duplicative documents imposing a disproportionate burden on the producing
party is ordered; (2) the party’s ability to present a viable claim or defense is severely
compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively
2
  The rule provides:
         (2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent
         or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent
         another from disclosing a confidential communication made to the person’s spouse while they were
         married.
Tex. R. Evid. 504(a) (2).
3
   See Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (setting out the factors to be considered in
determining whether a party has waived a privilege by offensive use of the attorney-client privilege). These factors
are: (1) whether the party asserting the privilege is seeking affirmative relief; (2) whether the party is using the
privilege to protect outcome determinative information; and (3) whether the protected information is not otherwise
available to the defendant. Id.
4
   The objections at the deposition were simply as to ―form.‖ Relators have not addressed the real parties’ other
bases for refusing to answer questions about the videotape, as set out in their response to relators’ motion to compel
discovery.
5
   It is the relator’s burden to provide this court with a sufficient record to show entitlement to relief. Walker v
Packer, 827 S.W.2d 833, 837 (Tex. 1992). A relator is required to file a properly authenticated transcript from the
underlying proceeding or a statement that no testimony was adduced in connection with the matter complained of.
See Tex. R. App. P. 52.7(a)(2).
                                                              2
denied the ability to develop the merits of its case; or (3) the trial court’s discovery order
disallows discovery that cannot be made a part of the appellate record, thereby denying the
reviewing court the ability to evaluate the effect of the trial court’s error. Id. (citing
Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992)).

         Relators have not established that the trial court abused its discretion. A trial court
abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly.
In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). When reviewing
the trial court’s decision for an abuse of discretion, we may not substitute our judgment for
that of the trial court with respect to the resolution of factual issues or matters committed to
the trial court’s discretion. See Walker, 827 S.W.2d at 839-40.

         The Texas Supreme Court has recognized that privileges ―represent society’s desire
to protect certain relationships, and an offensive use waiver of a privilege should not lightly
be found.‖ Republic Ins., 856 S.W.2d at 163. The Texas Supreme Court has applied the
offensive use doctrine to the attorney-client privilege, 6 the privilege against self
                    7                                                      8
incrimination,          and the physician-patient privilege.                     In contrast, the clergy
communications privilege has no exceptions. See Tex. R. Evid. 505. Our sister court has
rejected application of the offensive use doctrine to the clergy privilege. See Nicholson v.
Wittig, 832 S.W.2d 681, 687 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

         Relator has not cited any authority holding that the offensive use waiver applies to
the spousal communications privilege. For example, in Marshall v. Ryder Sys., Inc., cited
by relators, this court applied the offensive use waiver to the privilege against self
incrimination under the Fifth Amendment. 928 S.W.2d 190 195-96 (Tex. App.—Houston
[14th Dist.], 1996, writ denied); see also In re Garza, No. 13-07-401-CV, 2007 WL
2246779 *3 (Tex. App.—Corpus Christi Aug. 6, 2007, orig. proceeding) (not designated

6
    See Republic Ins. Co., 856 S.W.2d at 163.
7
    See Texas Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 747, 760-61 (Tex. 1995).
8
    See Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107-08 (Tex. 1985).
                                                         3
for publication) (also addressing the offensive use of the Fifth Amendment privilege).
The Marshall opinion also noted that there is no broad testimonial spousal privilege in civil
cases, and the spousal privilege is limited to confidential communications between the
spouses. Id. at 195. Therefore, these authorities do not support relators’ claim for relief.

       Relators have not established that they are entitled to extraordinary relief.
Accordingly, we deny relators’ petition for writ of mandamus.


                                          PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.




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