In Re EI DuPont De Nemours and Co.
136 S.W.3d 218, 47 Tex. Sup. Ct. J. 583, 2004 Tex. LEXIS 445 (2004)
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Rule of Law:
A party asserting attorney-client or work product privilege establishes a prima facie case by providing a privilege log and a non-conclusory supporting affidavit. Once this minimum showing is made, the trial court must conduct an in camera inspection of the tendered documents before it can compel their production.
Facts:
- Nearly 400 plaintiffs sued E.I. DuPont de Nemours (DuPont) and other defendants for asbestos-related injuries alleged to have occurred from 1935 to the present.
- In response to a discovery request from the plaintiffs, DuPont withheld 607 documents.
- DuPont claimed the documents were protected by the attorney-client and work-product privileges.
- At the plaintiffs' request, DuPont provided a privilege log describing the withheld documents and the specific privilege asserted for each.
- DuPont also submitted a supporting affidavit from its paralegal, Walter Connor, who attested that based on his review of the log and a company human resources database, the documents involved confidential legal communications or material prepared in anticipation of litigation.
- Connor's affidavit addressed the documents in groups, distinguishing between those involving only 'DuPont Legal' personnel, those involving both 'DuPont Legal' and non-legal personnel, and those with no legal personnel associated.
- DuPont tendered all 607 documents to the trial court for an in camera inspection.
Procedural Posture:
- Plaintiffs sued DuPont and over 100 other defendants in a state trial court.
- During discovery, Plaintiffs filed a motion to compel production of 607 documents DuPont withheld on grounds of privilege.
- The trial court conducted a hearing and granted the motion in large part, finding DuPont had not made a prima facie showing of privilege and ordering production without an in camera review for approximately 530 documents.
- DuPont, as relator, petitioned the intermediate court of appeals for a writ of mandamus to compel the trial court to vacate its order.
- A divided court of appeals denied mandamus relief.
- DuPont, as relator, then filed a petition for a writ of mandamus with the Supreme Court of Texas.
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Issue:
Does a trial court abuse its discretion by ordering the production of documents allegedly protected by attorney-client or work product privilege without first conducting an in camera inspection, after the party asserting the privilege has submitted a privilege log and a supporting affidavit from a knowledgeable employee?
Opinions:
Majority - Per Curiam
Yes, a trial court abuses its discretion by ordering the production of documents without an in camera review after a party has made a prima facie showing of privilege. The combination of DuPont's privilege log and the supporting affidavit from its paralegal, Walter Connor, was sufficient to establish a prima facie case for documents involving DuPont's legal department. The prima facie standard requires only the 'minimum quantum of evidence necessary to support a rational inference' that the privilege applies. An affidavit can be sufficient even if it addresses groups of documents, as long as it is based on personal knowledge and is not merely conclusory. Here, Connor's affidavit, which stated that communications involving both legal and non-legal personnel were for the purpose of rendering legal services, established a rational inference of privilege. Therefore, the trial court was required to conduct an in camera review of those documents before compelling their production. However, because Connor's affidavit was silent as to the documents with no 'DuPont Legal' names, DuPont failed to make a prima facie case for that category, and the trial court did not abuse its discretion in ordering their production without review.
Analysis:
This decision clarifies the procedural requirements for asserting and adjudicating privilege claims in Texas, particularly in cases involving a large volume of documents. It establishes that a non-conclusory affidavit supporting a privilege log is sufficient to meet the low threshold of a prima facie case, thereby triggering a trial court's mandatory duty to conduct an in camera review. This holding protects parties from the irreparable harm of erroneous disclosure of privileged material by preventing trial courts from summarily rejecting privilege claims without inspecting the evidence. The ruling provides practical guidance for corporate litigants on how to effectively assert privilege and reinforces the principle that mandamus relief is appropriate to correct discovery orders that improperly compel the production of privileged information.
