In Re Learjet Inc.
59 S.W.3d 842, 2001 WL 1439997, 2001 Tex. App. LEXIS 7690 (2001)
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Rule of Law:
Materials prepared for and used in a mediation are not protected from discovery by mediation confidentiality rules if they are otherwise discoverable. Such materials are not protected by the attorney-client privilege if their purpose is to present factual information to an opposing party rather than to facilitate the confidential rendition of legal services.
Facts:
- Raytheon contracted with the Federal Aviation Administration (FAA) to provide aircraft with specific cabin temperature control capabilities.
- Raytheon subsequently contracted with Learjet to build these aircraft to meet the FAA's specifications.
- After delivery, Raytheon alleged the aircraft failed to meet the temperature control specifications and that Learjet refused to fix the problem.
- Raytheon claimed it spent a substantial amount of money to bring the aircraft into compliance with the contract.
- In preparation for a mediation to resolve the dispute, Learjet's attorneys created videotapes of its employees (Wayne Stout, Mike Greeno, and Richard Wasson) answering questions about the aircraft's design and construction.
- Learjet played these edited videotapes for Raytheon during the mediation proceedings.
- The mediation failed to resolve the lawsuit.
Procedural Posture:
- Raytheon sued Learjet Inc. and Bombardier Inc. in a Texas district court (trial court) for breach of contract.
- During discovery, Raytheon filed a motion to compel Learjet to produce videotapes of its employees' statements.
- The trial court granted Raytheon's motion, ordering Learjet to produce the videotapes.
- Learjet filed a motion to reconsider the order, arguing for the first time that the tapes were protected by attorney-client privilege.
- The trial court denied the motion to reconsider.
- Learjet filed a petition for a writ of mandamus with the Court of Appeals, asking the appellate court to order the trial court judge to vacate the discovery order.
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Issue:
Are videotaped employee statements, prepared by counsel for the express purpose of presenting factual information to the opposing party during mediation, protected from discovery by either mediation confidentiality or the attorney-client privilege?
Opinions:
Majority - Ross, Justice.
No. The videotaped employee statements are not protected from discovery. The Texas Alternate Methods of Dispute Resolution Act does not create a blanket privilege for materials used in mediation; such materials are discoverable if they are discoverable independent of the procedure. Furthermore, the attorney-client privilege does not apply because the videotapes were not created to facilitate the rendition of legal services, but rather for the express purpose of presenting factual information to the opposing party. The court reviewed the videotapes and found they contained only factual inquiries about the aircraft's construction and condition, not confidential communications regarding legal strategy or analysis. Because the videotapes were created for disclosure to a third party (Raytheon), they were not intended to be confidential as required for the attorney-client privilege to attach. Lastly, because the employees were designated as testifying experts, the information is the type that is generally discoverable under Texas rules of civil procedure.
Analysis:
This decision clarifies the boundaries of both mediation confidentiality and the attorney-client privilege in the discovery process. It establishes that the use of materials in a mediation does not automatically shield them from discovery if they would otherwise be discoverable. The ruling emphasizes that the purpose and content of a communication are determinative for attorney-client privilege; simply having an attorney create the material is insufficient if the intent is to disclose factual information to an adversary. This case serves as a crucial reminder to litigators that materials prepared for settlement negotiations, especially those presenting factual narratives, are likely to be discoverable if the case does not settle.
