      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00250-CV




In re Unitrin County Mutual Insurance Company, f/k/a Charter County Mutual Insurance
                   Company, named as Financial Indemnity Company




                       ORIGINAL PROCEEDING FROM HAYS COUNTY



                             MEMORANDUM OPINION


               This mandamus proceeding involves a discovery dispute in a case filed by Edmond

and Rhonda Bisland against Relator Unitrin County Mutual Insurance Company (“Unitrin”) for

violations of the insurance code, breach of contract, and breach of Stowers duty in a related personal-

injury case.1 See G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544, 547 (Tex.

Comm’n App. 1929, holding approved) (insurer has duty to accept claimant’s reasonable offer to

settle within policy limits). Unitrin has filed a petition for writ of mandamus, seeking to vacate the

trial court’s order requiring the production of documents that Unitrin asserts are protected by the

attorney-client and work-product privileges. See Tex. R. Evid. 503; Tex. R. Civ. P. 192.5. This is

the third mandamus proceeding to arise from discovery disputes in the underlying litigation. See In

re Unitrin, No. 03-10-00178-CV, 2010 Tex. App. LEXIS 2290 (Tex. App.—Austin Mar. 29, 2010,



       1
       See Simmons v. Bisland, No. 03-08-00141-CV, 2009 Tex. App. LEXIS 2473 (Tex.
App.—Austin Apr. 9, 2009, pet. denied) (mem. op.).
orig. proceeding) (mem. op.); In re Unitrin, No. 03-09-00214-CV, 2009 Tex. App. LEXIS 10045

(Tex. App.—Austin May 28, 2009, orig. proceeding) (mem. op.).


                                        BACKGROUND

               The present dispute involves billing records for legal work performed by trial counsel

for Unitrin’s insureds, Lindig Construction and Trucking (“Lindig”) and Richard Simmons, in the

related personal-injury suit (“Trial Counsel”). In March 2010, the Bislands served Trial Counsel

with a notice of oral deposition and a subpoena duces tecum. Unitrin then filed a motion to quash

the notice and objected to the document requests as being overbroad and duplicitous of prior

discovery. After a hearing, the trial court denied the motion to quash and overruled Unitrin’s

objections to the subpoenaed documents.

               The deposition was held as scheduled on April 13, 2010. During his deposition, Trial

Counsel was asked, “So you haven’t withheld any documents that have been requested for any

reason; is that correct?” He responded, “Correct.” However, it was later discovered that other

responsive documents existed. In an affidavit attached to Unitrin’s motion to reconsider the order

to compel discovery, Trial Counsel stated as follows:


       During that deposition, I was asked if I had any recent invoices for legal work in the
       underlying lawsuit. I said I would check, and had someone in my office . . . try and find
       these documents. These invoices would describe the legal services that I and others at my
       firm performed in the underlying lawsuit. At the close of the deposition, there were some
       invoices left on my desk. I did not review these documents, but gave them to Mr. Cain,
       counsel for Defendant Unitrin, who also attended the deposition. Following my deposition,
       [counsel for the Bislands] sent me a letter asking me for other invoices in the underlying
       lawsuit, and I forwarded those to Mr. Cain as well. Mr. Cain informed me that he would
       review all these documents to determine if any privilege needed to be asserted.



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               Unitrin then filed two supplemental privilege logs, asserting the attorney-client and

work-product privileges with respect to the invoices in question. See Tex. R. Civ. P. 193.3. The

Bislands filed a motion to compel, arguing that the privileges had been waived and that Unitrin had

not made a prima facie showing that the privileges applied to the documents in question. After a

hearing, the trial court granted the Bislands’ motion in part and ordered Unitrin to produce all

documents listed on its first and second supplemental privilege logs. Unitrin filed its petition for

writ of mandamus in this Court, asserting that by granting the motion to compel without conducting

an in camera review of the withheld documents, the trial court committed an abuse of discretion

subject to mandamus relief.


                                          DISCUSSION

               The Bislands make a number of arguments that Unitrin waived its right to assert its

claims of privilege. We need not reach these waiver arguments because we conclude that on the

record before us, Unitrin has failed to make a prima facie showing of privilege. See In re E.I.

DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (holding that trial court must conduct

in camera review of documents “if party asserting privilege claims makes a prima facie showing of

privilege and tenders documents to the trial court”) (emphasis added).

               As the party making the claims of privilege, Unitrin bears the burden of producing

evidence to make a prima facie showing to substantiate its claim. Weisel Enters. v. Curry,

718 S.W.2d 56, 58 (Tex. 1986); In re Crudup, 179 S.W.3d 47, 50 (Tex. App.—San Antonio 2005,

orig. proceeding). “The prima facie standard requires only the ‘minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.’” DuPont, 136 S.W.3d at

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223 (quoting Texas Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.

App.—El Paso 1994, writ denied)). The Bislands argue that Unitrin failed to make a prima facie

showing of privilege because it offered no testimony or affidavits to substantiate its claim of

privilege. We do not consider the lack of testimony or affidavits to be dispositive, as “[t]he

documents themselves may constitute sufficient evidence to make a prima facie showing of

attorney-client or work product privilege.” DuPont, 136 S.W.3d at 223.2 We do, however, find it

problematic that Unitrin relies on the documents themselves to support its claims of privilege, but

never tendered the withheld documents to the trial court for in camera inspection.

               If the documents themselves are the only evidence substantiating the claim of

privilege, “they must be tendered for in camera inspection.” Kavanaugh v. Perkins, 838 S.W.2d

616, 620 (Tex. App.—Dallas 1992, orig. proceeding); see also Marathon Oil Co. v. Moye,

893 S.W.2d 585, 590 (Tex. App.—Dallas 1994, orig. proceeding) (“If the allegedly privileged

documents are the only evidence to show the privilege, a party must produce the documents for an




       2
          The Bislands argue that reliance on DuPont for this proposition is misplaced because the
withholding party in DuPont did provide an affidavit in support of its claim of privilege.
136 S.W.3d 218, 223 (Tex. 2004). We note that DuPont is not the only authority for the proposition
that the withheld documents alone can be sufficient to substantiate a claim of privilege. See, e.g.,
State v. Lowry, 802 S.W.2d 669, 671, 673 (Tex. 1991) (stating that “in some limited circumstances
the documents themselves may, standing alone, constitute sufficient proof” to establish claimed
privilege, and holding that when party “offered to tender . . . documents for an in camera inspection,
and such review was critical to the evaluation of privilege, the trial judge should have conducted an
examination”); Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (“In the absence of any
additional evidence to support the claimed privilege, this court must review the documents
themselves to determine if they clearly support the privilege as a matter of law.”); Weisel Enters.
v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (“When . . . the claim for protection is based on a specific
privilege, such as attorney-client or attorney work product, the documents themselves may constitute
the only evidence substantiating the claim of privilege.”).

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in camera inspection.”). Significantly, a “party asserting claims of privilege need not actually deliver

all documents to the trial court at the hearing on the claims,” but may “effectively tender” the

documents by repeatedly offering to produce them. Kavanaugh, 838 S.W.2d at 616. In the present

case, Unitrin not only failed to deliver the documents to the trial court for in camera inspection, but

failed to make any offer to produce them that would allow us to conclude that the documents were

“effectively tender[ed].” Id.

               Unitrin argues that it was not required to produce the documents until the trial court

determined that an in camera inspection was required, citing In re Living Centers of Texas, Inc., in

which the supreme court stated:


       A prima facie case is required to prevent trial judges from being compelled to inspect
       untold numbers of documents. Thereafter, if the trial court determines an in camera
       inspection is required, the court may order the documents tendered or the party
       asserting the privilege may, on its own initiative, tender the documents to the trial
       court.


175 S.W.3d 253, 261 (Tex. 2005) (citations omitted). In re Living Centers, however, contemplates

a situation in which a prima facie case has already been established by affidavits or testimony prior

to any in camera inspection, as just before the language quoted above, the court stated that “a prima

facie case for the privilege must be established by testimony or affidavit.” Id. In the present case,

the documents themselves were the only evidence to support the claims of privilege. As previously

discussed, where the documents themselves are the only evidence supporting the claims, those

documents must be tendered to the trial court to establish a prima facie case of privilege. See

Marathon Oil, 893 S.W.2d at 590; Kavanaugh, 838 S.W.2d at 620.



                                                   5
               Given Unitrin’s contention that the documents themselves are the only evidence

supporting the claims of privilege, it cannot establish a prima facie claim of privilege without, at a

minimum, attempting to produce these documents for the trial court. Because Unitrin failed to

present any evidence to the trial court, including the documents themselves, to substantiate its

claims, we cannot conclude that the trial court abused its discretion in ordering Unitrin to produce

the documents. The petition for writ of mandamus is denied.




                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Filed: June 25, 2010




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