EVIDENCE
LAW
FALL
2009
Kerlin v. Sotoarias, 274 S.W.3d
666 (Tex. 2008)
Personal Knowledge Requirement: Heirs
of Jesus Balli claimed title to a large portion of Padre Island based on the
allegation that a 19th century deed was fraudulent and that
therefore all subsequent deeds were invalid.
The trial court granted summary judgment against the heirs. The court of appeals reversed. The evidentiary issue before the Texas
Supreme Court was whether an affidavit submitted by the heirs in opposition to
the motion for summary judgment and over objection was competent summary
judgment evidence. Held: The affidavit did not create a genuine issue of material fact
because it was not based on the affiant’s personal knowledge. The Court’s holding was based on 1) the
assertion in the affidavit that it was based on the affiant’s “personal
knowledge and belief;” 2) the assertion in the affidavit that the affiant’s
knowledge was based on having “heard testimony” and “reviewed documents;” and
3) the absence of any indication in the affidavit of how the affiant could have
personal knowledge of the validity of the 19th century deed.
In re Small, WL 1620436;
LEXIS 4114 (Tex. AppEl Paso 2009)
Attorney-Client and Work Product Privileges: This mandamus proceeding arose out of a dispute over
an oil and gas lease and, specifically, the validity of a release of interests
in the subject property and associated oil and gas interests. During discovery, the defendant Enerplus
asserted the attorney-client and work product privileges as to numerous
internal documents related to the title work on the property at issue. The plaintiff moved to compel production of
the documents. After an in camera inspection
of the documents, the trial court ordered production of some but not all the documents. Held:
The court of appeals conditionally issued the writ, holding that all of the
documents were privileged. The court
described the documents and its reasoning for the holding as follows:
The parties have condensed the
documents, which the trial court ordered to be produced into five groups. Group
“A” contains emails between Enerplus representatives and attorney, John Lee,
concerning the curative steps required by a 2004 Division Title Order. Group
“B” contains a single fax document sent in May 2006, from Kirby Dasinger, an
Enerplus landman, to Enerplus Land Manager Greg Ryan. Group “C” consists of
handwritten notes by Enerplus Vice President Robert Moore regarding discussions
he had with attorney Lee. Group “D” refers to a single document referred to as
the “due diligence report,” which was created by Enerplus attorneys for
Enerplus employee review. Finally, group “E” contains several emails sent from
attorney Lee to Enerplus representatives concerning royalties from the well.
Following attorney Lee's
completion of the Division Title Order on the property in 2004, Enerplus
employees and representatives began the process of satisfying the curative
measures as outlined in the opinion in order to proceed with their plan to
develop the mineral rights. During that process, Mr. Moore remained in contact
with Mr. Lee. Enerplus asserted the attorney-client privilege to protect, what
its privilege log describes as Mr. Moore's handwritten notes related to
conversations with, or information provided by Mr. Lee from discovery. Enerplus
also witheld five emails between Mr. Lee, Mr. Small, Mr. Moore, and Mr.
Dasinger regarding the Larson well by asserting the attorney-client privilege.
These emails are referred to by the parties as group “A.”
The emails were sent between July 26 and August 24,
2004, during the same time period Mr. Small was corresponding with Mr. Nelan
regarding the release. According to affidavit evidence presented by Enerplus,
all of these documents were made for the purpose of the rendition of legal
services related to the title on the property at issue. All the affidavits include
statements indicating that the parties to these emails expected the
communications would be private and protected by the attorney-client privilege.
Enerplus argues that the affidavit evidence it has
provided establishes the “confidential communication” requirement of Rule
503(a)(5), and therefore, satisfied its burden to show the documents are not
discoverable. In response, S.L.D.S. does not challenge the communications'
status as confidential but argues that they were not made during the time period
when Mr. Lee was providing legal services. This argument is based on the
following statement in Mr. Lee's affidavit: “I am one of the attorneys at
Crowley who assisted Enerplus in doing the title work prior to the drilling of
the wells in question, including the well identified as [Larson].” S.L.D.S.
asserts that by this statement, Mr. Lee has excluded any work he did for
Enerplus after July 5, 2004, the day drilling began, from his rendition of
professional legal services for Enerplus. S.L.D.S. concludes that this
statement creates a conflict in the evidence regarding the duration of Mr.
Lee's services, which could only be resolved by the trial court. See In re
Angelini, 186 S.W.3d 558, 560 (Tex.2006).
We disagree that such a conflict exists. When read in
the context of the totality of the record, Mr. Lee's statement only indicates
that part of the legal service he provided to Enerplus included “title work”
prior to the date drilling began on the well. The totality of the record,
including the remainder of Mr. Lee's affidavit, shows that Mr. Lee continued to
provide Enerplus with legal services long after drilling began. S.L.D.S. has
failed to rebut Enerplus's assertion of attorney-client privilege with regard
to the documents in group “A.” Therefore, the trial court abused its discretion
by ordering Enerplus to produce these documents on this ground.
S.L.D.S. argues in the alternative, that Enerplus
waived the attorney-client privilege with regard to these emails by including
landman Kirby Dasinger, a third party, in the communications. It was part of
Enerplus's burden to establish that the privilege had not been waived by
disclosure. See Arkla, Inc., 846 S.W.2d at 630. According to his affidavit, Mr.
Dasinger was retained by Lyco Energy to assist Mr. Small and Mr. Lee regarding
the curative measures being taken on the property title. Mr. Dasinger
understood that his communications with Mr. Small and Mr. Lee regarding the
title work was confidential. The record does not contain evidence indicating
that the emails were communicated to any additional parties. Based on Mr.
Dasinger's affidavit, Enerplus rebutted S.L.D .S.'s disclosure argument by
establishing that the emails were not disclosed to any party other than those
individuals involved in the furtherance of Mr. Lee's representation of
Enerplus. Therefore, there was no waiver by disclosure, and the trial court
abused its discretion by ordering the emails to be disclosed on this ground.
S.L.D.S. presents similar arguments in response to
Enerplus's attorney-client privilege assertion to group “C.” Group “C” consists
of several handwritten notes by Enerplus Vice President Robert Moore, regarding
his discussions with Mr. Lee. Again, S.L.D.S. does not argue that these notes
do not fit the definition of attorney-client privilege but simply argues the
documents are not privileged because they were created after Mr. Lee ceased
providing legal services to Enerplus. Again, because we disagree that the
record contains an evidentiary conflict regarding the duration of Mr. Lee's
representation, the trial court abused its discretion by ordering these notes
be disclosed.
Group “E” consists of three emails sent in October of
2004 regarding potential royalty interests. The first email was sent from Joe
Small to Kirby Dasinger, David Knapp, and John Lee on October 5, 2004, with
carbon copies sent to Patricia Scott and Robert Moore. The second email was
sent by John Lee back to Joe Small on October 6, 2004. Joe Small sent the final
email on October 6, 2004, also to John Lee with copies also sent to Ms. Scott
and Mr. Moore. Mr. Small explained in his affidavit that the emails were
communication related to the ongoing title work being done under Mr. Lee's
direction. Enerplus asserted these documents were also protected by the attorney-client
privilege.
S.L.D.S. argues that any claim Enerplus may have had
that the emails one and three were privileged was waived by their disclosure to
third parties via the carbon copies to Mr. Dasinger, Mr. Moore, and Ms. Scott.
S.L.D.S. argues further that any privilege with regard to email two was waived
by Mr. Small's admission in his deposition that he reviewed the document while
preparing to testify.
As we discussed in our analysis of group “A,” a
communication is “confidential” if it is not intended to be disclosed to third
persons other than those persons to whom disclosure is made “in furtherance of
the rendition of professional legal services to the client or those reasonably
necessary for the transmition of the communication.” Tex.R.Evid. 503(a)(5). As
was the case earlier, the record does not indicate that Enerplus disclosed the
emails in group “E” to third parties. The record reflects, and S.L.D.S. does
not argue to the contrary, that Mr. Moore was an Enerplus executive, Ms. Scott
was in a high level position at Lyco, and Mr. Dasinger was a Lyco
representative in his capacity as a professional landman at the time they were
included in Mr. Small's email communications with Mr. Lee. Based in their
professional roles on behalf of Enerplus and Lyco, the evidence does not
demonstrate that Mr. Moore, Ms. Scott, and Mr. Dasinger were parties outside
the organization, which was the “client” for whom Mr. Lee was performing legal
services. Therefore, there was no waiver of the attorney-client privilege by
disclosure for emails one and three of group “E.”
With regard to email two, S.L.D.S. argues the
privilege was waived by Mr. Small's use of the document in his preparation for
deposition. During his deposition, Mr. Small testified as follows:
Q: Any other documents that you used in preparing for
your deposition today?
A: No, not really.
A: I'm sorry. I did look at things like this
(indicating).
Q: The letters?
A: The letters and the copies of the releases, and
things like that.
Q: Anything else that you recall?
A: Possibly an internal memorandum about the title
opinion.
Q: Okay. And this internal memorandum that you
reviewed in preparation for your deposition today, who issued the internal
memorandum.
A: I probably initiated it.
Q: Okay. And is it something that you used to recall
the sequence of events as far as this case was concerned?
A: Oh, it was written way before this case.
Q: Oh, it was?
A: Yes.
Q: What kind of internal memorandum are we talking
about?
A: Communication with John Lee.
Q: Okay. But this internal memorandum that you
reviewed this-regarding your communications with John Lee, that was something
that you used in preparation for your deposition today; is that right?
A: I reviewed it.
Enerplus argues that Mr. Small's reference to an
“internal memorandum” was not an admission that the emails were reviewed prior
to his deposition. Enerplus states that the document Mr. Small was referring
to, an internal memorandum created by Mr. Small for Mr. Lee and other Enerplus
representatives in May 2004, has been produced pursuant to a Rule 11 agreement,
and therefore, the issue is moot. The document Enerplus refers to is contained
in the mandamus record. It is titled “MEMORANDUM,” written by Mr. Small on May
12, 2004. In the memo, Mr. Small reports the status of his work in satisfying
the requirements of the Division Title Order.
S.L.D.S. does not contradict Enerplus's assertion that
the emails are privileged. Nor does S.L.D.S. refute Enerplus's statements that
the document Mr. Small referred to in his deposition was not the emails
contained in group “E.” There is no indication in the record that S.L.D.S.
disagrees with Enerplus's statement that the document referred to by Mr. Small
has been produced. Even so, were we to assume that Mr. Small's testimony was
sufficient to raise the issue of waiver as to group “E,” Enerplus has carried
its burden to refute the waiver argument by establishing the emails were not
part of Mr. Small's review and by demonstrating that the document he did use
has been produced. See Arkla, Inc., 846 S.W.2d at 630. Therefore, the emails in
group “E” remain protected by the attorney-client privilege, and there is no
need to further address the application of Texas Rule of Evidence 612(2). The
trial court abused its discretion by ordering disclosure of the group “E”
documents.
S.L.D.S. asserts that the remainder of the documents,
group “D,” is discoverable pursuant to the crime-fraud exception of Rule 503.
Group “D” contains a due diligence review created on August 31, 2005, by
attorneys at Andrews & Kurth, L.L.P., for Enerplus. By affidavit testimony,
Enerplus Land Manager Roxanne Forst explained the document was created as part
of the merger whereby Enerplus acquired Lyco Energy Corporation. Ms. Forst explains
that this type of document is routinely requested by companies and reflects the
legal analysis performed by attorneys on behalf of Enerplus at the time of the
acquisition. Enerplus asserted the attorney-client privilege protected the
memorandum from discovery. S.L.D.S. also contends that to the extent they are
privileged, the documents contained in groups “A,” “C,” and “E” are also
discoverable pursuant to the exception.
Texas Rule of Evidence 503(d)(1) provides that
material otherwise protected by the attorney-client privilege is discoverable
if 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. See Tex.R.Evid. 503(d)(1); In re Seigel, 198
S.W.3d at 28. The crime fraud exception only applies if: (1) the party
asserting the exception establishes a prima facie case of contemplated fraud;
and (2) there is a relationship between the document for which the privilege is
challenged and the prima facie proof offered. In re Seigel, 198 S.W.3d at 28.
The prima facie requirement is met when the proponent
offers evidence establishing the elements of fraud and that the fraud was
ongoing, or about to be committed at the time the document was prepared. Id.
Mere allegations of fraud are not sufficient. Id . Similarly, the fact that the
plaintiff's cause of action involves fraudulent conduct is also insufficient.
Id. The fraud alleged to have occurred must have happened at or during the time
the document was prepared, and the document must have been created as part of
perpetrating the fraud. Id. at 28-9. The trial court must make findings both
that the prima facie case has been established and that a nexus exists between
the document at issue and the alleged fraud. Id. at 29.
S.L.D.S. makes a three-part argument in support of its
assertion that the crime-fraud exception applies to all the documents otherwise
protected by the attorney-client privilege. Under part one, S.L.D.S. argues
that the July 29, 2004 memorandum, which has been produced pursuant to
agreement, indicates that Enerplus had developed a “fraudulent scheme to obtain
and use releases from various interest owners to convince others to also
release their interest in the 1962 Lease.” S.L.D.S. also argues that the
remainder of the evidence establishes element one of the exception. However,
this argument consists only of S.L.D.S.'s own allegations that “Enerplus
engaged in two forms of fraud: the misrepresentation to SLDS that the 1962
Lease was invalid for lack of production and its concealment of the fact that
the 1962 Lease was valid when and after the misrepresentation was made.” As we
noted above, neither the mere allegation of fraud, nor the fact that the
plaintiff's cause of action includes fraudulent conduct is sufficient to
establish the first element of the crime-fraud exception. See In re Seigel, 198
S.W.3d at 28. Here, the majority of S.L.D.S.'s “evidence” demonstrating that
Enerplus engaged its attorney for fraudulent purposes is its own allegations of
fraud, which serve as the basis of its lawsuit. Such a demonstration will not
serve as a basis for the application of the crime-fraud exception. See id.
Were we to determine that the July 29, 2004 memorandum
was sufficient to demonstrate Enerplus engaged in fraudulent conduct, which
would satisfy the first element of the exception, S.L.D.S. also argues that
there is proof that Mr. Lee's services were obtained to further the fraud in
the withheld documents. Without commenting on the contents of the documents in
groups “A,” “C,” and “E,” we disagree that S.L.D.S.'s blanket assertion that
those documents will prove the purpose of Mr. Lee's services was fraud
satisfies the requirements of the exception. Were we to accept S.L.D.S.'s
argument, the exception would overrun the rule. Parties seeking such discovery
would simply argue that withheld documents will prove their case, and the
attorney-client privilege would cease to exist in many situations.
Similarly, S.L.D.S. argues that the required nexus
between the documents and the fraudulent conduct will be established by the
contents of those documents. S.L.D.S. asserts that the documents it seeks will
demonstrate that Enerplus's fraudulent concealment was ongoing. Again, such an
argument cannot serve as the basis for an exception to the attorney-client
privilege. The crime-fraud exception requires the discovering party to
establish a connection between the particular documents sought and the fraud
alleged. Mere allegations will not suffice. As S.L.D.S. has not established a
prima facie case that the crime-fraud exception applies to the documents
protected by the attorney-client privilege, the trial court abused its
discretion by ordering Enerplus to produce them.
Group “B” refers to a single document which the
parties refer to as a fax from Enerplus Landman Kirby Dasinger to Enerplus Land
Manager Greg Ryan. According to Mr. Ryan's affidavit, the document was created
as part of a series of communications related to his investigation of Mr.
Nelan's claim that he was fraudulently induced to sign the 2004 oil and gas
release. Enerplus asserted both the attorney-client and attorney work product
privileges to protect the document from discovery. We will limit our analysis
to whether the document is protected as non-core attorney work product.
Rule 192.5(b)(2) precludes discovery of an attorney's
work product. Tex.R.Civ.P. 192.5(b)(2). The work product exemption protects the
attorney's mental processes, conclusions, and legal theories from discovery by
another party, thereby providing a privileged area where the attorney can
analyze and prepare the case. Marathon Oil Co., 893 S.W.2d at 589. The work
product exemption extends both to documents actually created by the attorney
and memoranda, reports, notes, or summaries of interviews prepared by other
individuals for the attorney's use. Id.
S.L.D.S. does not contest that the fax is properly
categorized by Enerplus as non-core work product. The party seeking such
discovery 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. See Tex .R.Civ.P. 192.5(b)(2); In re
Bexar County Crim. Dist. Attorney's Office, 224 S.W.3d 182, 188 (Tex.2007). A
party does not establish a “substantial need” for materials by showing a
“substantial desire” for them. Id. at 188. By the same token, a “substantial
need” is not established by evidence that the party could not prove his cause
of action without the materials. In re Bexar County Crim. Dist. Atty's Office,
224 S.W.3d at 188.
S.L.D.S. argues summarily that “[i]nformation in the
May 2006 fax may evidence the fraudulent scheme concocted and pursued by
Enerplus to obtain the release from SLDS of its interest in the 1962 Lease.”
S.L.D.S. continues by stating, “[t]he communication from Kirby Dasinger may
very well confirm the knowledge of Enerplus that SLDS's interest was still
valid despite the representation by Joe Small to Fred Nelan; evidence SLDS
would have a substantial need for and hardship acquiring from another
source....” This statement does nothing more than demonstrate S.L.D.S.'s desire
to obtain a copy of the fax and is therefore not sufficient to satisfy its
burden. Accordingly, with regard to group “B,” the trial court abused its
discretion by ordering Enerplus to disclose the fax.
We conclude that the trial court abused its discretion
by overruling Relators' objections to discovery and by granting the motion to
compel discovery of privileged materials. Because Realtors have no adequate
remedy at law, we conditionally grant the relief requested. The writ will issue
only if the trial court fails to comply with this opinion.
Smith v. State, WL 1212500; LEXIS
527 (Tex. Crim. App. 2009)
Confrontation Clause: A correctional officer reports of an inmate’s
disciplinary infractions were testimonial and not admissible unless either the
correctional officer was not available to testify or the accused had had prior
opportunity to cross examine the officer.
Even reports of “trivial” infractions can be testimonial, including
reports for failure to show up to work on time or for medical appointments. In Smith, however, admission of such reports
did not require reversal where, although the reports were read to the jury,
they were never emphasized again by the state in any way.
Hammer v. State, WL 928561;
LEXIS 513 (Tex. Crim. App. 2009)
Right of
Confrontation: The accused’s right to
Confrontation of the accuser in a sexual assault case was violated when the court
excluded evidence of the victim’s prior false allegations of sexual
assault. The court stated that, unlike
other states, Texas did not have a per se rule allowing admission of prior
false allegations of sexual assault, but Texas did not permit admission of such
evidence when the evidence was offered to prove something other than a general
attack upon the witness’ character for truthfulness. Here, the evidence was offered, in part, to
show that the victim had a motive to falsely accuse him of sexual assault. The court explained the evidence and its
reasoning as follows:
Appellant's defensive theory was that P.H. made up a
tale of sexual molestation to get out from under the heavy hand of her father.
She said she never liked him because he disciplined her too much and yelled at
her while doing so. She was angry with him because he wouldn't let her do
whatever she wanted to, as she could when she lived with her mother. The jury
was aware of P.H.'s motive to make a false accusation that would send appellant
back to prison. Appellant was allowed to question P.H. generally about her
motive to falsely accuse him.
But what the jury did not know-because the trial judge
excluded it-is that P.H. was particularly angry with appellant when he took her
to the hospital for a sexual assault examination after she had run away from
home and stayed out overnight. She told the nurse, "My dad wants to prove
that I had sexual intercourse with one of the guys that I ran away with."
P.H. also told the nurse that Ignacio Talamendez had "sexually
assaulted" her. She said that "at first it was kind of a consensual
thing but I told him to stop and he kept going." Then, P.H. purportedly
told Shonna that she had really had sex with Anthony, her boyfriend, that
night. She had said that it was Ignacio because her father was really strict
about letting her see Anthony. Apparently this event upset P.H. so much that
she threatened to commit suicide and was admitted to the state hospital shortly
thereafter. The charged offenses were alleged to have happened about a month
after she was released from the state hospital.
This evidence is strong support for appellant's theory
that P.H. had a motive to falsely accuse him of sexual molestation. It also
demonstrates that P.H. was not above changing her story of a consensual sexual
encounter with her boyfriend into a nonconsensual one with someone else to
prevent her father from learning the truth and presumably punishing her for
running away and having sex with Anthony.
Billodeau v. State, 277
S.W.3d 34 (Tex. Crim. App. 2009)
Right of Confrontation: Similarly, the accused’s Confrontation Clause rights were violated when the trial court refused to allow the defendant to question the victim about statements they had made prior to the alleged assault about his intent to falsely accuse the defendant of sexual assault. The court erred in excluding this evidence and such error was not harmless.