                                  IN THE
                          TENTH COURT OF APPEALS




                                 No. 10-16-00374-CV

              IN RE MID-CENTURY INSURANCE COMPANY



                                 Original Proceeding


                           MEMORANDUM OPINION


       Mid-Century Insurance Company has filed a petition for a writ of mandamus to

compel the trial court to withdraw an order overruling its claims of work product

privilege to certain documents in its claims file relating to its insured, Monica Cobb. Cobb

filed a notice of intent to take a written deposition of the custodian of records for Mid-

Century which included a subpoena duces tecum requiring the production of its entire

claims file. Cobb asserted an underinsured motorist claim (UIM) against Mid-Century

and had added claims for extra-contractual damages for bad faith. Mid-Century filed a

motion to quash the deposition on the basis that the documents now in question sought
by Cobb were privileged work product.1

        The trial court conducted a hearing on Mid-Century's objections and assertion of

privilege. Mid-Century filed an affidavit by a claims adjuster and provided the trial court

with a privilege log prior to the hearing, and asked the trial court to review the documents

in-camera. The trial court conducted an in-camera inspection of the documents in

question and overruled Mid-Century's assertions of work product privilege.                              Mid-

Century filed this mandamus proceeding to seek an order requiring the trial court to

withdraw its order overruling its assertions of work product privilege.

STANDARD OF REVIEW

        To be entitled to mandamus relief, a relator must demonstrate (1) the trial court

clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re

Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). 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 the law correctly or apply the law




1Before the trial court, Mid-Century objected to the production of other parts of its claims file on the basis
of the attorney-client privilege. Those objections were sustained, and although they are listed in the original
privilege log filed with this Court in the original mandamus petition, those documents are not before us in
this proceeding. Additionally, this Court abated the mandamus for Mid-Century to provide a specific log
and notebook of the corresponding documents to the trial court and ordered the trial court to identify the
specific documents in question to be forwarded to this Court. The trial court entered an order entitled
"Order Reviewing Relator's Notebook Containing In Camera Documents" which attached the first
amended privilege log with the trial court's rulings which was submitted to this Court after the abatement.
The first amended privilege log reduced the number of documents in question in this proceeding. For
purposes of identification for the parties, our review is based on the first amended privilege log and
corresponding notebook that contained the sealed documents reviewed by the trial court in camera that
was filed with this Court on February 22, 2017.


In re Mid-Century Insurance Company                                                                     Page 2
correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005)

(orig. proceeding) (per curiam). The scope of discovery is within the discretion of the

trial court. In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig.

proceeding). Appeal is not an adequate remedy when the trial court has erroneously

ordered the production of privileged documents. In re Christus Santa Rosa Health Sys., 492

S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).

WORK PRODUCT PRIVILEGE

       The work product privilege protects communications "made in anticipation of

litigation or for trial between a party and the party's representatives or among a party's

representatives, including the party's attorneys, consultants, sureties, indemnitors,

insurers, employees, or agents." TEX. R. CIV. P. 192.5(a)(2). The work product privilege is

not necessarily specific to the claim for which it is sought, but is specific for the claim for

which it was created. Once it is created as work product in relation to a claim, it remains

work product and protected by a privilege from disclosure from any claim, subject only

to limited exceptions such as waiver. In this mandamus proceeding, Mid-Century

complains that the trial court abused its discretion by overruling its claims of work

product privilege.

ASSERTION OF THE PRIVILEGE

       A party who seeks to withhold items from discovery on the basis that the

documents are privileged must make a prima facie showing that the documents are



In re Mid-Century Insurance Company                                                      Page 3
subject to the privilege asserted. In re E. I. DuPont de Nemours & Co., 136 S.W.3d 218, 223

(Tex. 2004) (orig. proceeding). Generally, this prima facie showing is made by serving a

privilege log identifying the withheld documents and, if a hearing is held, by presenting

evidence supporting the privilege. See In re Maher, 143 S.W.3d 907, 913 (Tex. App.—Fort

Worth 2004, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917, 924 (Tex. App.—Waco

1999, orig. proceeding). The evidentiary requirement may be satisfied by the documents

themselves. See DuPont, 136 S.W.3d at 223. Cobb argues that Mid-Century did not timely

make a prima facie case for the privileges asserted because the privilege log and affidavit

were inadequate and therefore, all asserted privileges were waived.

       Mid-Century provided a privilege log prior to the hearing regarding the asserted

privileges and the trial court conducted an in-camera inspection of all of the documents

Mid-Century asserted were privileged. We find that the privileges were not waived

because the documents themselves, taken with the affidavit of the claims adjuster, were

adequate to make the required prima facie showing. DuPont, 136 S.W.3d at 223.

CORE VERSUS NON-CORE WORK PRODUCT

       "Core work product" made in anticipation of litigation includes "the work product

of an attorney or an attorney's representative that contains the attorney's or the attorney's

representative's mental impressions, opinion, conclusions, or legal theories" and is not

subject to discovery. TEX. R. CIV. P. 192.5(b)(1). Work product not qualifying as "core"

made in anticipation of litigation is discoverable only when the party seeking the material



In re Mid-Century Insurance Company                                                    Page 4
has demonstrated a substantial need for it and that a substantial equivalent cannot be

obtained by other means without encountering undue hardship.                  TEX. R. CIV. P.

192.5(b)(2).

       An investigation is conducted in anticipation of litigation if it meets the two-prong

test of Flores which includes both an objective prong and a subjective prong. Flores v.

Fourth Court of Appeals, 777 S.W.2d 38, 40-41 (Tex. 1989). Specifically, an investigation is

conducted in anticipation of litigation if (1) "a reasonable person would have concluded

from the totality of the circumstances surrounding the investigation that there was a

substantial chance that litigation would ensue" (the objective prong); and (2) "the party

resisting discovery believed in good faith that there was a substantial chance that

litigation would ensue and conducted the investigation for the purpose of preparing for

such litigation" (the subjective prong). Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193, 207

(Tex. 1993). A "substantial chance of litigation" does not "refer to any particular statistical

probability that litigation will occur" but "simply means that litigation is more than

merely an abstract possibility or unwarranted fear." Id. at 204. The Texas Supreme Court

rejected the proposition "that the circumstances surrounding an accident can never by

themselves be sufficient to trigger the privilege." Id. "If a reasonable person would

conclude from the severity of the accident and the other circumstances surrounding it

that there was a substantial chance that litigation would ensue, then the objective prong

. . . is satisfied." Id. "It is not necessary that litigation be threatened or imminent, as long



In re Mid-Century Insurance Company                                                       Page 5
as the prospect of litigation is identifiable because of claims that have already arisen." Id.

at 205. Nor is it necessary for the plaintiff to have manifested an intent to sue. Id. at 204.

          The subjective prong does not require the investigating party to be absolutely

convinced that litigation will occur; it requires only a good faith belief that there is a

substantial chance that litigation will ensue. Brotherton, 851 S.W.2d at 204. The subjective

prong also "requires that the investigation actually be conducted for the purpose of

preparing for litigation." Id. However, the language of Rule 192.5 does not require that

the sole or primary purpose of the material or communication be for preparing for

litigation. See TEX. R. CIV. P. 192.5.

          An affidavit made by a claims adjuster for Farmers Insurance Exchange2 in June

of 2016 stated that Farmers opened a claim file relating to Cobb upon receiving a letter

from Cobb's attorney in March of 2010 regarding a claim for personal injury damages

sustained in the accident relevant to this proceeding. The letter was the first notification

of the accident that was received by Farmers. The adjuster stated that because of this

communication, based on her many years of training and experience, it was likely that

litigation was forthcoming as of that date.               Further, the adjuster testified that all

communications made in the case from that time were made for the purposes of

evaluating the claims in anticipation of litigation. Our review of the documents in

question confirm the adjuster's statements regarding the communications in the claims


2   Farmers Insurance Exchange is authorized to adjust claims on behalf of Mid-Century Insurance Company.


In re Mid-Century Insurance Company                                                               Page 6
file and relating to the potential for an UIM claim. We find that the documents requested

meet both prongs of Flores, and as such, the documents meet the definition of work

product. TEX. R. CIV. P. 192.5(a)(2); see also Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193,

207 (Tex. 1993).

       Cobb argues that if the documents are work product, they are non-core work

product and therefore, the documents should be produced because she has substantial

need of the materials in the preparation of her case and that she is unable, without undue

hardship, to obtain the substantial equivalent of the material by other means. TEX. R. CIV.

P. 192.5(b)(2).

       A party seeking to obtain documents through this exception bears a heavy burden

to prove its applicability. In re Bexar Cnty. Criminal Dist. Attorney's Office, 224 S.W.3d 182,

187-88 (Tex. 2007) (orig. proceeding). Improving Cobb's odds of winning is not enough;

substantial need is not merely substantial desire. Id. at 188. As the party seeking

discovery of non-core work product, Cobb labors under a heavy burden to show both

that a substantial need for the materials exists and that materials equivalent to those

sought cannot be obtained without substantial hardship. In re Small, 346 S.W.3d 657, 668

(Tex. App.—El Paso 2009, orig. proceeding); In re McDaniel, No. 14-13-00127-CV, 2013

Tex. App. LEXIS 4052, 2013 WL 1279454, at *3 (Tex. App.—Houston [14th Dist.] Mar. 28,

2013, orig. proceeding) (mem. op.). Additionally, a "substantial need" is not established

by evidence that Cobb could not prove her cause of action without the materials. In re



In re Mid-Century Insurance Company                                                     Page 7
Bexar County Crim. Dist. Atty's Office, 224 S.W.3d at 188.

       While Cobb argues that she has a substantial need for the privileged documents,

she has not met her "heavy burden" to prove that the work product privilege should be

overcome. Cobb argued to the trial court that she would be unable to prove her bad faith

claims against Mid-Century without the materials but did not attempt to show that there

was no other alternative method for her to prepare her case. Because Cobb did not meet

her burden, there was no proper basis for the trial court to overrule Mid-Century's

assertion of work product privilege for the documents in question.

       We find that the trial court abused its discretion in overruling Mid-Century's

assertions of work product privilege surrounding the documents listed in the amended

privilege log provided to this Court. Because Mid-Century has no adequate remedy at

law, we conditionally grant the relief requested. The writ will issue only if the trial court

fails to comply with the Court's judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Writ conditionally granted
Opinion delivered and filed October 25, 2017
[OT06]




In re Mid-Century Insurance Company                                                    Page 8
