


 
IN THE
TENTH COURT OF APPEALS
 










 
 

No. 10-08-00092-CV
 
In re
Wilburn Lewis Kirkpatrick
 
 

Original Proceeding
 
 

MEMORANDUM  Opinion

 
The petition for writ of mandamus is denied.  
 
 
                                                                                    BILL
VANCE
                                                                                    Justice
 
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
Petition
denied
Opinion
delivered and filed April 9, 2008
[OT06]




 


-size:14.0pt;font-family:"CG Times";
text-transform:uppercase;letter-spacing:1.0pt'>(dissenting
on one very small issue)



 
          Sometimes all that is necessary to
prove a privilege is the document itself.  But this requires some careful
analysis.  In Kelly’s “privilege log,” I note that it fails to identify the
other recipients of items 2, 3, and 4.[1] 
Because other persons received the documents, and there is no affidavit or
other evidence of who these persons are, I agree that Kelly has failed to
establish the privileges asserted to these three items.  I also note that the
information in the log on items 2 and 3 is not entirely accurate.
          Item 1 in the privilege log is clearly
work product.  Kelly sought to protect it on this basis.  It should be
protected.  Thus, on this one issue, I dissent; otherwise, I concur in the
Court’s judgment.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Concurring
and Dissenting Opinion delivered and filed July 13, 2005




[1]
It is difficult to discern or correlate the
documents produced in camera to the privilege log.  The log has four
items listed.  The documents produced in camera are divided by five
numbered tabs.  The first three items behind tab 1 correspond to the first
three items on the log.  Everything after that, including what is behind each
of the four remaining tabs, may have been part of a file as described in item 4
in the log.  I simply cannot tell.  There are many people who appear to have
received the documents whose identities are not established.  There are many
discrete documents of different and diverse character.  The privilege log
should have listed each document and the privilege asserted to it.


