Is Document Collection Privileged?

The Court of Appeals has granted mandamus relief in a discovery dispute over the scope of a corporate representative’s deposition. The underlying lawsuit was for damage to the plaintiffs’ property incurred in the course of moving from Texas to the United Arab Emirates. The plaintiffs sought deposition testimony on two topics that the Court of Appeals held were beyond the proper scope of discovery. First, the Court ruled that the plaintiffs were not entitled to discovery of the defendant’s gross revenues for 2009-13, as the relevant issue for purposes of exemplary damages is the defendant’s current net worth, not its past and present revenues. Second, the Court rejected the plaintiffs’ request for the witness to identify the defendants’ production documents and explain why they had been produced. On that issue, the Court cited In re Exxon Corp., 208 S.W.3d 70, 76 (Tex. App.-Beaumont 2006, orig. proceeding), for the proposition that “discovery regarding the methods of document collection and production invades the work-product privilege.” The opinion does not explain just how far that principle reaches, but attorneys and clients should keep it in mind the next time they are writing or responding to a corporate rep notice.

In re Arpin Am. Moving Sys., LLC, No. 05-13-01446-CV