                                                                                         ACCEPTED
                                                                                     01-15-00918-CV
                                                                          FIRST COURT OF APPEALS
                        01-15-00918-CV                                            HOUSTON, TEXAS
                                                                               10/27/2015 4:57:39 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK

                         NO. 01-15-_______-CV

                                                      FILED IN
                                               1st COURT OF APPEALS
                   IN THE COURT OF APPEALS         HOUSTON, TEXAS
                                               10/27/2015 4:57:39 PM
                FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
                                                        Clerk
                             AT HOUSTON


                                    In re:

            UNION PACIFIC RAILROAD COMPANY,

                                Relator.



                PETITION FOR WRIT OF MANDAMUS


HAYNES AND BOONE, LLP                  KANE RUSSELL COLEMAN & LOGAN PC

Kent Rutter                            Marcy Lynn Rothman
State Bar No. 00797364                 State Bar No. 17318500
Christina Crozier                      M. Daniel Guerra
State Bar No. 24050466                 State Bar No. 00793865
Andrew Guthrie                         5051 Westheimer Road, 10th Floor
State Bar No. 24078606                 Houston, Texas 77056
1221 McKinney, Suite 2100              Telephone: (713) 425-7444
Houston, Texas 77010-2007              Telecopier: (713) 425-7700
Telephone: (713) 547-2000              MRothman@krcl.com
Telecopier: (713) 547-2600             DGuerra@krcl.com
Kent.Rutter@haynesboone.com
Christina.Crozier@haynesboone.com
Andrew.Guthrie@haynesboone.com

                          Attorneys for Relator,
                     Union Pacific Railroad Company
                  IDENTITY OF PARTIES AND COUNSEL

I.     Relator:
       Union Pacific Railroad Company
II.    Counsel for Relator:
       Kent Rutter
       Christina Crozier
       Andrew Guthrie
       HAYNES AND BOONE, LLP
       1221 McKinney, Suite 2100
       Houston, Texas 77010-2007

       Marcy Lynn Rothman
       M. Daniel Guerra
       KANE RUSSELL COLEMAN & LOGAN PC
       5051 Westheimer Road, 10th Floor
       Houston, Texas 77056
III.   Real Parties in Interest:

        Donald and Mary Trichel, Individually and as Next Friends of Nicholas
         Trichel
        Jeremy Ray Hampton
IV.    Counsel for Real Parties in Interest Donald and Mary Trichel,
       Individually and as Next Friends of Nicholas Trichel:
       Vuk S. Vujasinovic
       Brian Beckcom
       VB ATTORNEYS, PLLC
       6363 Woodway, Suite 400
       Houston, Texas 77057

       Dale Jefferson
       Levon Hovnatanian
       MARTIN, DISIERE, JEFFERSON & WISDOM
       Niels Esperson Building
       808 Travis, 20th Floor
       Houston, Texas 77002

                                        -i-
V.    Counsel for Real Party in Interest Jeremy Ray Hampton:

      Adolfo R. Rodriguez, Jr.
      Wilson C. Aurbach
      Christopher K. Rusek
      RODRIGUEZ LAW FIRM, P.C.
      1700 Pacific Ave., Suite 3850
      Dallas, Texas 75201

VI.   Respondent:

      Honorable Kyle Carter
      125th District Court
      201 Caroline, 10th Floor
      Houston, Texas 77002




                                      - ii -
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i 

TABLE OF CONTENTS ......................................................................................... iii 

TABLE OF AUTHORITIES ..................................................................................... v 

STATEMENT OF JURISDICTION....................................................................... vii 

STATEMENT OF THE CASE .............................................................................. viii 

ISSUES PRESENTED............................................................................................... x 

STATEMENT OF FACTS ........................................................................................ 1 

I.      The underlying case arises from a vehicular accident ..................................... 1 

II.     Union Pacific immediately engaged outside counsel to conduct
        interviews and provide legal advice about possible litigation......................... 1 

III.    The trial court ruled that the recorded interviews between Union
        Pacific’s employees and its litigation counsel were not privileged
        and ordered them immediately disclosed ........................................................ 3 

SUMMARY OF THE ARGUMENT ........................................................................ 4 

ARGUMENT AND AUTHORITIES ........................................................................ 6 

I.      The trial court abused its discretion by ordering disclosure of the
        recorded interviews, which are protected by the attorney-client
        privilege ........................................................................................................... 6 

        A.       The interviews were privileged communications among
                 Union Pacific employees and its outside litigation counsel.................. 7 

        B.       Union Pacific did not waive the privilege ........................................... 13 

II.     Union Pacific has no adequate remedy by appeal

        16 

CONCLUSION AND PRAYER ............................................................................. 17 



                                                          - iii -
VERIFICATION ...................................................................................................... 19 

CERTIFICATE OF COMPLIANCE ....................................................................... 20 

CERTIFICATE OF SERVICE ................................................................................ 21 

APPENDIX ................................................................................................... Tab A-C 




                                                       - iv -
                                   TABLE OF AUTHORITIES

CASES
In re AEP Tex. Central Co.,
    128 S.W.3d 687 (Tex. App.—San Antonio 2003, orig. proceeding) ................. 12

In re Arpin Am. Moving Systems, LLC,
    416 S.W.3d 927 (Tex. App.—Dallas 2013, orig. proceeding) ............................. 6

In re CSX Corp.,
    124 S.W.3d 149 (Tex. 2003) ................................................................................ 6

In re E.I. DuPont de Nemours & Co.,
    136 S.W.3d 218 (Tex. 2004) ................................................................................ 8

In re Fontenot,
    13 S.W.3d 111 (Tex. App.—Fort Worth 2000, orig. proceeding) ...............10, 13

In re Ford Motor Co.,
    211 S.W.3d 295 (Tex. 2006) (orig. proceeding) ................................................ 16

Huie v. DeShazo,
  922 S.W.2d 920 (Tex. 1996) ................................................................................ 6

In re Matthew Arden,
    2004 WL 576064 (Tex. App.—El Paso 2004, orig. proceeding) ...........12, 13, 16

In re Park Cities Bank,
    409 S.W.3d 859 (Tex. App.—Tyler 2013, orig. proceeding) ................10, 11, 13

In re Prudential Ins. Co.,
    148 S.W.3d 124 (Tex. 2004) ................................................................................ 5

In re Texas Health Res.,
    No. 05-15-00813-CV, 2015 WL 5029272 (Tex. App.—Dallas
    Aug. 26, 2015, orig. proceeding) .......................................................................... 8

In re University of Tex. Health Ctr.,
    33 S.W.3d 822 (Tex. 2001)................................................................................. 16




                                                     -v-
In re USA Waste Mgmt. Res., LLC,
    387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012, orig.
    proceeding) .....................................................................................................8, 11

Walker v. Packer,
  827 S.W.2d 833 (Tex. 1992) .......................................................................... 6, 16

RULES
TEX. R. CIV. P. 192, cmt. 9 ......................................................................................... 9

TEX. R. CIV. P. 192.3(h) ........................................................................................... 14

TEX. R. CIV. P. 193, cmt. 3 .................................................................................14, 15

TEX. R. CIV. P. 193.2(f) ............................................................................................ 13

TEX. R. CIV. P. 193.3(a) ........................................................................................... 14

TEX. R. CIV. P. 193.3(b) ........................................................................................... 14

TEX. R. EVID. 503(a)(2).............................................................................................. 7

TEX. R. EVID. 503(a)(2)(A) ........................................................................................ 7

TEX. R. EVID. 503(a)(2)(B) ........................................................................................ 8

TEX. R. EVID. 503(b)(1)(A), (D) ................................................................................ 7

TEX. R. EVID. 503(d)(1) ...............................................................................10, 11, 12

TEX. GOV’T CODE § 22.221(b) ................................................................................ vii




                                                         - vi -
                       STATEMENT OF JURISDICTION

      The Court has mandamus jurisdiction under Texas Rule of Appellate

Procedure 52 and Texas Government Code Section 22.221(b), which provides that

a court of appeals “may issue all writs of mandamus, agreeable to the principles of

law regulating those writs, against a . . . judge of a district or county court . . . .”

TEX. GOV’T CODE § 22.221(b).




                                         - vii -
                          STATEMENT OF THE CASE

Nature of Proceedings:

      This mandamus petition arises from a case involving a collision between a

car driven by Nicholas Trichel and a tractor-trailer rig leased by Union Pacific and

driven by Jeremy Ray Hampton. (MR:2.)1 Nicholas’s parents, Donald and Mary

Trichel, filed this lawsuit on behalf of Nicholas’s estate and in their individual

capacities (collectively, “the Trichels”). (MR:1-29.) The Trichels bring negligence

claims against Union Pacific and Jeremy Ray Hampton. (MR:3-4.) The case is No.

2014-23177, Donald and Mary Trichel, Individually and as Next Friends of

Nicholas Trichel v. Union Pacific Railroad Company and Jeremy Ray Hampton, In

the 125th District Court of Harris County, Texas. (MR:1-29.)

Respondent:

      The Respondent is the Honorable Kyle Carter, Judge of the 125th Judicial

District Court of Harris County, Texas.

Action Complained of:

      Two days after the accident, Union Pacific’s outside counsel met with

Hampton and another Union Pacific driver to discuss the accident so that she could

understand their impressions of what had occurred and provide legal advice to

Union Pacific. (MR:120.) She was joined by another Union Pacific employee—

1
  Union Pacific will cite to the Appendix as (App. [Tab #]) and the Mandamus Record as
(MR:[page]).


                                       - viii -
acting as a representative of Union Pacific’s in-house counsel—who conducted the

interviews and recorded them. (MR:115-16, 120.) The Trichels later demanded

production of these recordings. Union Pacific objected and argued that the

interviews were protected from disclosure by the attorney-client privilege. (See

MR:43-50, 124-27.) After reviewing a transcript of the recordings in camera, the

trial court overruled those objections and ordered the immediate production of the

recordings and transcripts. (See App. A; MR:264-65.)




                                      - ix -
                              ISSUES PRESENTED

(1)   Did the trial court abuse its discretion by requiring the immediate disclosure

      of privileged interviews between Union Pacific employees and its outside

      counsel, where the interviews were conducted for the specific purpose of

      facilitating the rendition of legal services to Union Pacific?

(2)   Does Union Pacific lack an adequate remedy by appeal where the trial court

      required the immediate disclosure of communications protected by the

      attorney-client privilege?




                                        -x-
                             STATEMENT OF FACTS

I.    The underlying case arises from a vehicular accident.

      The underlying case arises out of a collision that occurred on April 15, 2014,

between a Ford Mustang driven by Nicholas Trichel and a tractor-trailer rig leased

by Union Pacific and driven by Jeremy Ray Hampton. (MR:1-2.) Trichel suffered

significant injuries in the accident. (MR:2.) Nicholas Trichel’s parents, Donald and

Mary Trichel, filed the underlying lawsuit, alleging that Hampton and Union

Pacific were negligent, grossly negligent, and negligent per se. (MR:1, 3-4.)

II.   Union Pacific immediately engaged outside counsel to conduct
      interviews and provide legal advice about possible litigation.

      On the day of the accident, Union Pacific engaged Marcy Rothman of the

law firm Kane Russell Coleman & Logan PC to provide legal advice in connection

with the accident. (MR:120.) Given the nature of the incident, Union Pacific

already anticipated a possible lawsuit. (MR:108, 115-16.)2 In fact, two of its

employees—Hampton and James Wilson (who was driving along in another

tractor-trailer)—had either been issued citations at the scene or read their Miranda

rights by Corporal James Talbert. (MR:108, 120.) Rothman was therefore engaged

by Union Pacific to provide legal advice for issues arising out of the accident,

including possible criminal charges. (MR:120.)


2
    This belief was confirmed when Union Pacific received a letter—dated two days after the
accident—in which the Trichels noted their intent to pursue litigation. (MR:113.)
      Two days later, Rothman met with Hampton and Wilson to discuss the

accident so that she could better understand their impressions of how it occurred.

(MR:115-16, 120.) Rothman was joined by William J. Green, Director of Claims

for Union Pacific, who was assisting in the investigation as a representative of

Union Pacific’s in-house counsel. (MR:115-16, 120.) Rothman directed Green to

take the lead in conducting the interviews, asking Hampton and Wilson to provide

their accounts of the events surrounding the accident in her presence so that she

could hear their first-hand recollections. (MR:115-16, 120.) Green also tape

recorded the interviews. (MR:115.)

      Recently, in the course of preparing for his deposition, Green realized that

the recorded interviews had never been provided to Rothman, Union Pacific’s

litigation counsel.3 (MR:115-16.) He immediately notified Rothman and provided

her with a copy of the statements on October 20, 2015. (MR:115-16.) Two days

later, out of an abundance of caution and a show of good faith, Rothman

voluntarily disclosed the existence of the recorded interviews to counsel for the

Trichels, asserted that they were privileged, and produced a supplemental privilege

log. (MR:122, 124-27.)



3
    Initially, Rothman was engaged to represent Union Pacific and its employees (including
Hampton and possibly Wilson) in connection with any possible litigation arising out of the
accident. (MR:115, 120.) However, Hampton has since engaged separate counsel and Wilson
was not sued; Rothman now represents only Union Pacific.


                                          -2-
III.   The trial court ruled that the recorded interviews between Union
       Pacific’s employees and its litigation counsel were not privileged and
       ordered them immediately disclosed.

       At a hearing on October 23, 2015, the Trichels demanded that Union Pacific

produce the recorded interviews. (MR:264; Supp.MR.4) While they argued that the

interviews were not protected by the attorney-client privilege, they also lobbed

allegations that Union Pacific had intentionally concealed the recordings—despite

the fact that Union Pacific voluntarily disclosed their existence immediately after

the recordings were brought to the attention of its counsel. (Supp.MR; MR:128;

see also MR:115-16, 124-27.) Union Pacific resisted the demand for production. It

argued that the statements are unquestionably privileged as confidential

communications between and among Union Pacific employees and its outside

litigation counsel that occurred in anticipation of this very litigation. (MR:43.)

Moreover, Union Pacific argued that it had no duty to notify the Trichels about the

existence of the interviews in the first place, but did so in good faith and out of an

abundance of caution. (MR:43.)

       Judge Kyle Carter asked to review a transcript of the recorded interviews in

camera. (MR:264; Supp.MR) After doing so, and hearing arguments from both

sides, the trial court ruled on October 27, 2015 that the statements should be


4
    The transcript from the October 23, 2015 hearing is not yet available, but Union Pacific
intends to file a supplement to the mandamus record as soon as it receives the transcript. For the
time being, Union Pacific will reference that transcript as “Supp.MR.”


                                              -3-
immediately produced. (See MR:264-65; App. A.5) Union Pacific requested a stay

of that ruling for seven days so that it could pursue mandamus relief with this

Court, but the trial court did not grant that request. (MR:49, 265; see App. A.) He

ordered Union Pacific to produce the statements “immediately.” (MR:264-65; App.

A.) Union Pacific therefore seeks mandamus relief to prevent the disclosure of

these privileged communications with counsel.6

                         SUMMARY OF THE ARGUMENT

       The trial court abused its discretion when it ruled that the recorded

interviews between Hampton, Wilson, Green, and Rothman were not protected by

the attorney-client privilege and were subject to immediate disclosure.

       The attorney-client privilege applies when a client (or its representative)

engages in confidential communications for the purposes of facilitating the

rendition of legal services. That is precisely what the post-accident interviews

were, as they involved Hampton and Wilson (as Union Pacific employees)

describing the accident to a lawyer representing Union Pacific so that she could

render legal advice on the very claims asserted in this litigation. These were

5
   Union Pacific learned of the trial court’s ruling during a phone call with the clerk around
lunchtime on October 27, 2015. (MR:264.) The call ended with instructions that the Trichels
submit a proposed order, which is attached as Appendix Tab A. (MR:265.) Union Pacific will
file a supplement to the Mandamus Record as soon as it receives the signed order.
6
  To assist the Court in its analysis of this Petition—while preserving the privilege—Union
Pacific intends to provide the transcripts of these recorded interviews for the Court’s in camera
inspection, as it did in the trial court. It is therefore filing a Motion for Permission to File
Documents In Camera.


                                              -4-
paradigmatic attorney-client communications and they are not subject to

disclosure.

      Likely for that reason, the Trichels strain to argue that the interviews are not

privileged under the crime-fraud exception. They are wrong. The crime-fraud

exception only applies where the attorney’s services were sought for the purpose

of enabling a crime or fraud. The Trichels have no evidence to satisfy that

requirement, only empty allegations. And in fact, even their allegations (though

wrong as a matter of fact and insufficient as a matter of law) fail to trigger this

exception.

      Nor does it make a difference that Union Pacific only recently disclosed that

the recorded interviews exist. Because the communications pertained to this

litigation—and therefore go to the heart of the attorney-client privilege—Union

Pacific had no obligation to notify the Trichels of their existence in the first place.

Union Pacific therefore did not waive the privilege by bringing these recordings to

the Trichels’ attention as a courtesy and out of an abundance of caution.

      Finally, because the trial court’s ruling improperly requires Union Pacific to

disclose privileged attorney-client communications, Union Pacific has no adequate

remedy by appeal. This Court should grant the petition for writ of mandamus.




                                         -5-
                       ARGUMENT AND AUTHORITIES

      This Court should grant mandamus relief, which is available when: (1) a trial

court clearly abuses its discretion; and (2) there is no adequate remedy by appeal.

In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). Because a trial

court has no discretion to determine what the law is or apply the law to the facts, a

trial court abuses its discretion when it reaches an erroneous legal conclusion. Id. at

135; Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996). When a trial court

orders discovery that exceeds what is permitted by the Texas Rules of Civil

Procedure—including by ordering the production of privileged materials—it

abuses its discretion, and the resisting party has no adequate remedy by appeal. In

re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Walker v. Packer, 827 S.W.2d

833, 843 (Tex. 1992); In re Arpin Am. Moving Systems, LLC, 416 S.W.3d 927, 929

(Tex. App.—Dallas 2013, orig. proceeding).

I.    The trial court abused its discretion by ordering disclosure of the
      recorded interviews, which are protected by the attorney-client
      privilege.

      Simply put, these interviews are protected by the attorney-client privilege

and the trial court abused its discretion in ordering that they be disclosed. The

attorney-client privilege protects confidential communications between and among

client representatives (including employees who are discussing the performance of

their job duties) and the client’s counsel. That is exactly what the interviews were.



                                         -6-
Moreover, Union Pacific did not waive the privilege by disclosing the recorded

interviews when it did—in fact, Union Pacific had no obligation to disclose them

in the first place. The trial court therefore had no basis to order disclosure of the

recorded interviews and abused its discretion by doing so.

      A.       The interviews were privileged communications among Union
               Pacific employees and its outside litigation counsel.

      Texas Rule of Evidence 503 defines the scope of the attorney-client

privilege in Texas. Under that rule, a client has the right to protect from disclosure

“confidential communications made for the purposes of facilitating the rendition of

professional    legal   services,”   including   communications:    (i)   between   a

representative of the client and the client’s lawyer; and (ii) between representatives

of the client. See TEX. R. EVID. 503(b)(1)(A), (D). The recorded interviews with

Hampton and Wilson are therefore privileged because they involved confidential

communications between Union Pacific’s lawyer (Rothman) and its representatives

(Green, Hampton, and Wilson). This privilege belongs to Union Pacific. TEX. R.

EVID. 503(c).

      Rule 503 defines a “representative of the client” in two different ways, both

of which apply in this case. See TEX. R. EVID. 503(a)(2). Subsection 2(A) defines a

client representative as any “person having authority to obtain professional legal

services, or to act on advice thereby rendered, on behalf of the client.” TEX. R.

EVID. 503(a)(2)(A). That was Green, who was investigating the accident as a


                                         -7-
representative of Union Pacific’s in-house counsel and coordinating with Rothman

(outside counsel) to facilitate her rendition of legal services to Union Pacific.

(MR:115-16, 120.)

      Rule 503 also contains a second definition of “representative,” one that goes

much further than the test embodied in Subsection 2(A). See, e.g., In re Texas

Health Res., No. 05-15-00813-CV, 2015 WL 5029272, at *3 (Tex. App.—Dallas

Aug. 26, 2015, orig. proceeding). Under Subsection 2(B), a client representative

includes “any other person who, for the purpose of effectuating legal

representation for the client, makes or receives a confidential communication while

acting in the scope of employment for the client.” TEX. R. EVID. 503(a)(2)(B).

      This definition incorporates the “subject matter” test, which deems an

employee’s communications with his employer’s attorney privileged if two

conditions are satisfied: (1) the communication is made at the direction of the

employee’s superiors at the company; and (2) the subject matter upon which the

attorney’s advice is sought by the company—and that which is addressed in the

confidential communication—is the performance of the employee’s duties of his

employment. See, e.g., In re USA Waste Mgmt. Res., LLC, 387 S.W.3d 92, 96

(Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); see also In re E.I.

DuPont de Nemours & Co., 136 S.W.3d 218, 226 n.3 (Tex. 2004) (under the




                                       -8-
subject matter test, “the attorney-client privilege may apply to communications

between attorneys and employees who are not executives or supervisors”).

      Hampton and Wilson were representatives of Union Pacific under

Subsection 2(B) because their post-accident interviews fit squarely under both

prongs of the subject matter test. First, they provided their statements at the request

and direction of Green, a representative of Union Pacific and its in-house counsel.

(MR:115-16, 120.) Moreover, their statements related to the performance of their

duties as drivers for Union Pacific—the very matter for which Union Pacific had

sought Rothman’s legal advice. (MR:115-16, 120.) As a result, Hampton and

Wilson were representatives of Union Pacific for purposes of the interviews. See

USA Waste Mgmt. Res., LLC, 387 S.W.3d at 96 (holding that employee was

representative of client where she gave interview with outside counsel and the

communication related to the performance of her job duties). Because Green was

also a client representative, as described above, the conversations were privileged

under Rules 503(b)(1)(A)—communications between a representative of the client

and    the    client’s   lawyer—and      503(b)(1)(D)—communications          between

representatives of the client.

      The Trichels have nevertheless suggested that the recorded interviews were

subject to disclosure as “witness statements” under Texas Rule of Civil Procedure

192.3(h). Not so. While the interviews may fit the description of a witness



                                         -9-
statement, that does not render meaningless the protections of the attorney-client

privilege. In fact, Comment 9 to the 1999 amendments says just that, noting that

“[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.” TEX. R. CIV. P. 192, cmt. 9 (emphasis added); see also In re

Fontenot, 13 S.W.3d 111, 114 (Tex. App.—Fort Worth 2000, orig. proceeding)

(holding that a broad rule requiring disclosure of all witness statements “would

effectively abrogate the attorney-client privilege”). Put simply, it makes no

difference that the recorded interviews might be described as “witness statements;”

they are privileged attorney-client communications that are protected from

disclosure.

      And that is true regardless of the subject matter of the interviews themselves.

The trial court seemed to believe that if the interviews covered only facts—i.e.

what Hampton and Wilson remembered about the events leading up to the

accident—then the statements would not be privileged. (MR:264; Supp.MR.) That

is not correct. If the communications are made for the purposes of facilitating the

rendition of legal services, they are privileged, regardless of whether the

communications involve explicit legal advice or simply a discussion of factual

information. See In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. App.—Tyler



                                       - 10 -
2013, orig. proceeding) (“The subject matter of the information communicated is

irrelevant when determining whether the privilege applies.”).

          Without any other options, the Trichels argued below that the recorded

interviews are not privileged under the crime-fraud exception. See TEX. R. EVID.

503(d)(1). This argument is meritless, both as a matter of law and of fact. The

crime-fraud exception applies only where “the services of the lawyer were sought

or obtained to enable or aid anyone to commit or plan to commit what the client

knew or reasonably should have known to be a crime or fraud.” Id. The Trichels

have not offered a shred of evidence that Rothman was engaged to enable a crime

or fraud, and their argument fails for this reason alone. See USA Waste Mgmt. Res.,

387 S.W.3d at 98 (holding that the requesting party “bears the burden of proving

this exception” and “[m]ere allegations of fraud are insufficient”) (emphasis

added).

          Moreover, the allegation of fraud at the center of the Trichels’ strained

theory is wrong as a matter of fact. The Trichels claim that Union Pacific

committed fraud by “falsely plead[ing]” that it received the Trichels’ letter of

representation on April 17, 2014, rather than April 21. (MR:139.) However, Union

Pacific’s statement was correct. Union Pacific stated that “two days after the

incident, on April 17, 2015 [sic],7 Union Pacific received a letter of legal

7
    That date should be April 17, 2014, as reflected by the letter itself. (MR:113.)


                                                 - 11 -
representation on behalf of the Plaintiffs.” (MR:44.) This is confirmed by the letter

itself, which shows that the Trichels’ attorney faxed the letter to two different

Union Pacific fax numbers on April 17, 2014, a Friday. (MR:113.) While Rothman

did not receive the letter from Union Pacific until early the following week (April

21st), that does not change the obvious fact that Union Pacific “received” the letter

on the day the Trichels faxed it to Union Pacific—despite the imprecise language

used in Rothman’s response letter, sent the day she received it. (MR:233.)

      In any event, this alleged “false pleading” (which is actually true) is

irrelevant to the crime-fraud analysis because it was served only last week, roughly

a year and half after the privileged communications occurred. (MR:45.) As even

the Trichels admitted in their briefing below—and as required by the plain

language of Rule 503(d)(1)—the crime-fraud exception only applies where the

fraud occurred or was contemplated at the time of the privileged communication.

See In re AEP Tex. Central Co., 128 S.W.3d 687, 692 (Tex. App.—San Antonio

2003, orig. proceeding). The Trichels have made no such allegation, and their

crime-fraud argument fails for this additional reason.

      For all these reasons, the recorded interviews are protected by the attorney-

client privilege and the trial court abused its discretion in ordering that Union

Pacific produce them. Texas courts consistently grant mandamus in similar

circumstances, and this Court should do so here. See, e.g., In re Matthew Arden,



                                       - 12 -
2004 WL 576064 at *3-4 (Tex. App.—El Paso 2004, orig. proceeding) (granting

mandamus where the trial court ordered the production of privileged

communications between a driver and his insurance adjuster); Fontenot, 13 S.W.3d

at 114 (granting mandamus where the trial court ordered production of a privileged

letter between a physician, his insurance carrier, and his attorney).

      B.     Union Pacific did not waive the privilege.

      The Trichels have also suggested that Union Pacific waived any claim of

privilege by disclosing the existence of the recorded interviews when it did. They

are wrong. In fact, Union Pacific had no obligation to tell the Trichels about the

statements in the first place, and it certainly did not waive the privilege by doing so

out of an abundance of caution and good faith.

      The Trichels’ argument below reflected an outdated understanding of the

Texas rules for asserting a privilege. They claimed that Union Pacific was

“required to object” to their discovery requests if they intended to claim any kind

of privilege as to the recordings and transcripts. (MR:142.) The Rules of Civil

Procedure say precisely the opposite. TEX. R. CIV. P. 193.2(f) (“A party should not

object to a request for written discovery on the grounds that it calls for production

of material or information that is privileged but should instead comply with Rule

193.3.”) (emphasis added); see also Park Cities Bank, 409 S.W.3d at 870 (“No

objection needs to be made to preserve a privilege, and the rules set no time limit



                                        - 13 -
for asserting a privilege.”).8 Instead, the Rules simply call for the producing party

to withhold the privileged material and then—upon a request from the other side—

describe the withheld materials in a way that allows other parties to assess the

applicability of the privilege. TEX. R. CIV. P. 193.3(a), (b). This is typically done

through a privilege log.

       However, the Rules also contain a significant exception from those

requirements, one that applies in this case. Under Rule 193.3(c), a producing party

has no obligation to identify or describe its withholding of “a privileged

communication to or from a lawyer or lawyer’s representative . . . (1) created or

made from the point at which a party consults a lawyer with a view to obtaining

professional legal services from the lawyer in the prosecution or defense of a

specific claim in the litigation in which discovery is requested, and (2) concerning

the litigation in which the discovery is requested.” TEX. R. CIV. P. 193.3(c); see

also TEX. R. CIV. P. 193, cmt. 3 (“A party need not state that material created by or

for lawyers for the litigation has been withheld as it can be assumed that such

material will be withheld from virtually any request on the grounds of attorney-

client privilege or work product.”).


8
    Moreover, the Trichels’ authority for their waiver argument was based on an inaccurate
citation. They claimed that Rule 193.3(e) provides for a waiver of any objection if not made
within the time required. (MR:143.) Not so. The provision they quoted actually appears in Rule
193.2(e)—immediately before noting that no objection is required in the first place to preserve a
claim of privilege. Simply put, the Trichels’ argument rests on a non-existent premise.


                                             - 14 -
      The recorded interviews with Hampton and Wilson are precisely that kind of

communication. As described above, the interviews involved privileged

communications to Union Pacific’s outside litigation counsel (Rothman).

(MR:115-16, 120.) The interviews were conducted at a point where Union Pacific

had consulted a lawyer in order to obtain professional legal services in the defense

of the very claims asserted in this action. (MR:115-16, 120.) Finally, the privileged

communications concerned this litigation, as they related to Hampton’s and

Wilson’s impressions of the accident so that Rothman could begin preparing a

defense of the asserted claims. (MR:115-16, 120.) In short, the recorded interviews

fit neatly within the exception of Rule 193.3(c); there was no need to include them

on the privilege log; and Union Pacific certainly did not waive the privilege by

disclosing their existence to the Trichels out of an abundance of caution and a

show of good faith.

      In any event, even if the requirements of Rule 193.3 apply (and they do not),

Union Pacific properly asserted its privilege. As soon as Union Pacific’s counsel

became aware of the recently retrieved recorded interviews located by Green and

determined that they should be withheld from production, she complied with Rule

193.3 by: (1) stating that the recordings had been withheld and describing the

applicable privileges; and (2) generally describing the materials in Union Pacific’s

supplemental privilege log. (MR:122, 124-27.) Thus, she did exactly what the rule



                                       - 15 -
drafters contemplated when privileged material is identified after an initial

response. TEX. R. CIV. P. 193, cmt. 3 (noting that a withholding statement “should

not be made prophylactically, but only when specific information and materials

have been withheld. The party must amend or supplement the statement if

additional privileged information or material is found subsequent to the initial

response”). Because Union Pacific did just that, it complied with any discovery

obligation it might have had and the privilege was not waived.

II.   Union Pacific has no adequate remedy by appeal.

      The trial court’s error leaves Union Pacific with no adequate remedy by

appeal. Once a party has erroneously been required to produce privileged

information, the privilege bell cannot be unrung. See Walker v. Packer, 827

S.W.2d 833, 843 (Tex. 1992) (acknowledging that after privileged documents have

“been inspected, examined and reproduced . . . a holding that the court had

erroneously issued the order [compelling production] would be of small comfort to

relators in protecting their papers”).

      For this reason, the Texas Supreme Court has repeatedly held that “appeal is

inadequate when a trial court erroneously orders the production of confidential

information or privileged documents.” In re Ford Motor Co., 211 S.W.3d 295, 298

(Tex. 2006) (orig. proceeding) (citing In re University of Tex. Health Ctr., 33

S.W.3d 822, 827 (Tex. 2001)); see also Arden, 2004 WL 576064, at *4 (appeal is



                                         - 16 -
not adequate where the trial court has erroneously ordered the disclosure of

privileged information because “an appellate court would be unable to cure such

error”). Union Pacific therefore has no adequate remedy by appeal because if it is

forced to disclose the recordings and transcripts, the privilege over those

communications will forever be lost. This Court should issue a writ of mandamus.

                         CONCLUSION AND PRAYER

       Union Pacific respectfully requests that this Court (1) grant this mandamus

petition, (2) issue a writ of mandamus directing the trial court to vacate its order

requiring the disclosure of the recorded interviews between its outside litigation

counsel and its employees, and (3) grant all further relief to which Union Pacific is

entitled.




                                       - 17 -
Respectfully submitted,

HAYNES AND BOONE, LLP


/s/ Kent Rutter
Kent Rutter
State Bar No. 00797364
Christina Crozier
State Bar No. 24050466
Andrew Guthrie
State Bar No. 24078606
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Telecopier: (713) 547-2600
Kent.Rutter@haynesboone.com
Christina.Crozier@haynesboone.com
Andrew.Guthrie@haynesboone.com

KANE RUSSELL COLEMAN & LOGAN PC

Marcy Lynn Rothman
State Bar No. 17318500
M. Daniel Guerra
State Bar No. 00793865
5051 Westheimer Road, 10th Floor
Houston, Texas 77056
Telephone: (713) 425-7444
Telecopier: (713) 425-7700
MRothman@krcl.com
DGuerra@krcl.com

ATTORNEYS FOR RELATOR,
UNION PACIFIC RAILROAD COMPANY




  - 18 -
                                VERIFICATION

STATE OF TEXAS                 §
                               §
COUNTY OF HARRIS               §


       BEFORE ME, the undersigned Notary Public, on this day personally
appeared Marcy Lynn Rothman, who, being by me duly sworn on her oath,
deposed and said that she is an attorney for Relator, Union Pacific Railroad
Company; that she has read the foregoing Petition for Writ of Mandamus; that
every factual statement in the petition is supported by competent evidence included
in the appendix or record; and that the documents included in the Appendix to the
Petition for Writ of Mandamus are true and correct copies of the originals.


                                        ;1/, \ ~             r(_pf-
                                      Marcy LylUl R~an


        SUBSCRIBED AND SWORN TO BEFORE ME, thi .()!j__            'I/Jayof October,
2015.


                                     Ow:lJm2 LJiaru         LJJ
                                      Notary Public in and for
                                      the State of Texas




                                      - 19 -
                      CERTIFICATE OF COMPLIANCE
                          TEX. R. APP. P. 9.4(i)(3)

       I hereby certify that this Petition contains a total of 3,958 words, excluding
the parts of the petition exempted under TEX. R. APP. P. 9.4(i)(1), as verified by
Microsoft Word 2010. This Petition is therefore in compliance with TEX. R. APP. P.
9.4(i)(2)(B).

Dated: October 27, 2015.


                                   /s/ Kent Rutter
                                   Kent Rutter
                                   Counsel for Relator,
                                   Union Pacific Railroad Company




                                       - 20 -
                        CERTIFICATE OF SERVICE

       In accordance with the Texas Rules of Appellate Procedure, the undersigned
hereby certifies that a true and correct copy of the Petition for Writ of Mandamus
has been served on Respondent and the following counsel of record via e-service
on this 27th day of October, 2015:
Respondent:
      Honorable Kyle Carter
      125th District Court
      201 Caroline, 10th Floor
      Houston, Texas 77002
Counsel for Real Parties in Interest, Donald and Mary Trichel,
Individually and as Next Friends of Nicholas Trichel:
      Vuk S. Vujasinovic
      Brian Beckcom
      VB ATTORNEYS, PLLC
      6363 Woodway, Suite 400
      Houston, Texas 77057
      Dale Jefferson
      Levon Hovnatanian
      MARTIN, DISIERE, JEFFERSON & WISDOM
      Niels Esperson Building
      808 Travis, 20th Floor
      Houston, Texas 77002
Counsel for Real Party in Interest Jeremy Ray Hampton:
      Adolfo R. Rodriguez, Jr.
      Wilson C. Aurbach
      Christopher K. Rusek
      RODRIGUEZ LAW FIRM, P.C.
      1700 Pacific Ave., Suite 3850
      Dallas, Texas 75201

                                 /s/ Kent Rutter
                                 Kent Rutter



                                      - 21 -
                            APPENDIX

Tab A   —   October 27, 2015 letter from Kenneth Fenelon, counsel for the
            Trichels, attaching proposed order

Tab B   —   TEX. R. EVID. 503

Tab C   —   TEX. R. CIV. P. 193.3
                     TAB A
 October 27, 2015 letter from Kenneth Fenelon,
counsel for the Trichels, attaching proposed order
	  




                                     October 27, 2015



Attn: Bridgett Stanfield
Court Coordinator for the 125th District Court
201 Caroline
Houston, Texas 77002

       Re: Cause No. 2014-23177, Trichel vs. Union Pacific Railroad Company, et al., In the
       125th District Court, Harris County, Texas

       Proposed Order

Dear Mrs. Stanfield:

       Please find attached the proposed order requested by the Court earlier today during
the conference call set by the Court.

                                                 Sincerely,



                                                 /s/ Kenneth Fenelon
                                                 VB Attorneys
                                                 Attorney for Plaintiffs



Certificate of Service: The undersigned authority hereby certifies that a true and correct
copy of the foregoing instrument has been electronically served upon all counsel of
record via email through the Court’s electronic filing system on 27th day of October
2015.
                                          /s/ Kenneth Fenelon
                                          ___________________________________
                                          Kenneth Fenelon
	  




	  
                                                                                                              10/27/2015 12:48:31 PM
                                                                                             Chris Daniel - District Clerk Harris County
                                                                                                                Envelope No. 7557502
                                                                                                               By: MELISSA TORRES
                                                                                                       Filed: 10/27/2015 12:48:31 PM

                                            Cause No. 2014-23177

Donald And Mary Trichel, Individually                         §                     In The District Court Of
And As Next Friends Of Nicholas Trichel                       §
                                                              §
Vs.                                                           §                         Harris County, Texas
                                                              §
Union Pacific Railroad Company and                            §
                                                                                           th​
Jeremy Ray Hampton                                            §                         125​ Judicial District

                                                      Order

        On this day came on for consideration the discoverability of the recorded witness statements

of Jeremy Ray Hampton and James Wilson and ​
                                           Defendant Union Pacific Railroad Company’s Brief

in Opposition to Production of Employee Statements and Conditional Motion to Stay, The Trichels’

Brief in Support of the Discoverability of the Statements of Hampton and Wilson, The Trichels’

Supplement to Brief in Support of the Discoverability of the Statements of Hampton and Wilson,

and Defendant Jeremy Hamptons Response to Trichels’ Supplement to Brief in Support of the

Discoverability of the Statements of Hampton and Wilson​
                                                       , and the Court, having read the briefs of

                                                             in camera ​
counsel, heard arguments of counsel, and having conducted an ​         review of the recorded

witness statements, is of the opinion that the witness statements are discoverable and must be

produced. All objections and/or privileges raised by Defendants Union Pacific Railroad Company

and Jeremy Hampton are overruled and all relief requested by Defendants Union Pacific Railroad

Company and Jeremy Hampton is denied.

        It is therefore ORDERED that Defendants Union Pacific Railroad Company and Jeremy

Hampton produce the actual audio recordings of both statements and a copy of the transcription of

both statements immediately.

        Signed __________________, 2015.

                                                     ______________________________
                                                     JUDGE PRESIDING
     TAB B
TEX. R. EVID. 503
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503




  Vernon’s Texas Rules Annotated
    Texas Rules of Evidence (Refs & Annos)
      Article V. Privileges (Refs & Annos)

                                              TX Rules of Evidence, Rule 503
                                             Rule 503. Lawyer-Client Privilege
                                                            Currentness


(a) Definitions. In this rule:

  (1) A “client” is a person, public officer, or corporation, association, or other organization or entity--whether public or
  private--that:

     (A) is rendered professional legal services by a lawyer; or

     (B) consults a lawyer with a view to obtaining professional legal services from the lawyer.

  (2) A “client’s representative” is:

     (A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal
     advice rendered; or

     (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a
     confidential communication while acting in the scope of employment for the client.

  (3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or
  nation.

  (4) A “lawyer’s representative” is:

     (A) one employed by the lawyer to assist in the rendition of professional legal services; or

     (B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.

  (5) A communication is “confidential” if not intended to be disclosed to third persons other than those:

     (A) to whom disclosure is made to further the rendition of professional legal services to the client; or

     (B) reasonably necessary to transmit the communication.

(b) Rules of Privilege.

  (1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential
  communications made to facilitate the rendition of professional legal services to the client:

     (A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;

     (B) between the client’s lawyer and the lawyer’s representative;

     (C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing
     another party in a pending action or that lawyer’s representative, if the communications concern a matter of common
     interest in the pending action;

     (D) between the client’s representatives or between the client and the client’s representative; or

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503



    (E) among lawyers and their representatives representing the same client.

  (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s
  representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by
  reason of the attorney-client relationship.

(c) Who May Claim. The privilege may be claimed by:

  (1) the client;

  (2) the client’s guardian or conservator;

  (3) a deceased client’s personal representative; or

  (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or
  not in existence.
    The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim
    the privilege on the client’s behalf--and is presumed to have authority to do so.

(d) Exceptions. This privilege does not apply:

  (1) Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained to enable or aid anyone to commit or
  plan to commit what the client knew or reasonably should have known to be a crime or fraud.

  (2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming
  through the same deceased client.

  (3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to
  the client or by a client to the lawyer.

  (4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to
  which the lawyer is an attesting witness.

  (5) Joint Clients. If the communication:

    (A) is offered in an action between clients who retained or consulted a lawyer in common;

    (B) was made by any of the clients to the lawyer; and

    (C) is relevant to a matter of common interest between the clients.

Credits

Eff. March 1, 1998. Amended by orders of Supreme Court March 10, 2015 and Court of Criminal Appeals March 12, 2015,
eff. April 1, 2015.

Editors’ Notes

NOTES AND COMMENTS

    Comment to 1998 change: The addition of subsection (a)(2)(B) adopts a subject matter test for the privilege of an
    entity, in place of the control group test previously used. See National Tank Co. v. Brotherton, 851 S.W.2d 193,
    197-198 (Tex. 1993).

Notes of Decisions (424)



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503



Rules of Evid., Rule 503, TX R EVID Rule 503
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received
through September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial
Administration are current with amendments received through September 1, 2015. Other state court rules and selected county
rules are current with rules verified through June 1, 2015.
End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
      TAB C
TEX. R. CIV. P. 193.3
193.3. Asserting a Privilege, TX R RCP Rule 193.3




  Vernon’s Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 9. Evidence and Discovery (Refs & Annos)
           B. Discovery
             Rule 193. Written Discovery: Response; Objection; Assertion of Privilege; Supplementation and
             Amendment; Failure to Timely Respond; Presumption of Authenticity

                                              TX Rules of Civil Procedure, Rule 193.3
                                                    193.3. Asserting a Privilege
                                                             Currentness


A party may preserve a privilege from written discovery in accordance with this subdivision.

(a) Withholding Privileged Material or Information. A party who claims that material or information responsive to written
discovery is privileged may withhold the privileged material or information from the response. The party must state--in the
response (or an amended or supplemental response) or in a separate document--that:

  (1) information or material responsive to the request has been withheld,

  (2) the request to which the information or material relates, and

  (3) the privilege or privileges asserted.

(b) Description of Withheld Material or Information. After receiving a response indicating that material or information has
been withheld from production, the party seeking discovery may serve a written request that the withholding party identify
the information and material withheld. Within 15 days of service of that request, the withholding party must serve a response
that:

  (1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise
  waiving the privilege, enables other parties to assess the applicability of the privilege, and

  (2) asserts a specific privilege for each item or group of items withheld.

(c) Exemption. Without complying with paragraphs (a) and (b), a party may withhold a privileged communication to or from
a lawyer or lawyer’s representative or a privileged document of a lawyer or lawyer’s representative--

  (1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services
  from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and

  (2) concerning the litigation in which the discovery is requested.

(d) Privilege Not Waived by Production. A party who produces material or information without intending to waive a claim of
privilege does not waive that claim under these rules or the Rules of Evidence if--within ten days or a shorter time ordered by
the court, after the producing party actually discovers that such production was made--the producing party amends the
response, identifying the material or information produced and stating the privilege asserted. If the producing party thus
amends the response to assert a privilege, the requesting party must promptly return the specified material or information and
any copies pending any ruling by the court denying the privilege.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
193.3. Asserting a Privilege, TX R RCP Rule 193.3



Credits

Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.


Notes of Decisions (60)



Vernon’s Ann. Texas Rules Civ. Proc., Rule 193.3, TX R RCP Rule 193.3
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received
through September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial
Administration are current with amendments received through September 1, 2015. Other state court rules and selected county
rules are current with rules verified through June 1, 2015.
End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
