CHAPTER 5 - 5-5 Hearings and Rulings on Privilege Objections and Assertions

• Jurisdiction: United States

5-5 Hearings and Rulings on Privilege Objections and Assertions

Texas Rule 193.4 provides for hearings and rulings on objections and privilege assertions made pursuant to Texas Rules 193.2 and 193.3. Either the requesting or responding party can request a hearing on an objection or privilege assertion.¹⁶⁰ If neither party requests one, the requesting party waives the objected-to discovery.¹⁶¹ Thus, once objections or privileges have been asserted, the requesting party effectively has the burden of securing a hearing to resolve any dispute regarding them.¹⁶² To secure a hearing on privilege assertions, however, the requesting party does not have to specify its rationale for challenging the assertions; a general challenge to them is sufficient to entitle the requesting party to a hearing.¹⁶³

The responding party almost always has the burden of proving an objection's or a privilege's applicability.¹⁶⁴ And it must present any evidence necessary to support the objection or privilege.¹⁶⁵ "The evidence may be testimony presented at the hearing or affidavits served at least seven days before the hearing or at such other reasonable time as the court permits."¹⁶⁶ But proof is not always necessary to sustain certain objections, such as ones that a written-discovery request is overbroad or irrelevant.¹⁶⁷ If the objection can be determined from the discovery request's face, a trial court does not abuse its discretion in ruling on them without conducting a hearing about them.¹⁶⁸

The party asserting a privilege must first make a prima facie showing of privilege.¹⁶⁹ This only requires "the minimum quantum of evidence necessary to support a rational inference that the allegation is in fact true."¹⁷⁰ In some cases, the subject "documents themselves may constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege."¹⁷¹ But most often, a prima facie case is established by a privilege log and evidence in the form of testimony or an affidavit.¹⁷² An affidavit does not need to address each document individually to make a prima facie showing that the documents are privileged.¹⁷³ But an affidavit has "no probative value if it merely presents global allegations that documents come within the asserted privilege."¹⁷⁴

If a party asserting a privilege makes a prima facie showing of privilege and tenders the withheld documents to the trial court, the court must conduct an in camera inspection of them before ruling on the motion to compel their production.¹⁷⁵ A trial court that refuses to conduct an in camera inspection abuses its discretion when the inspection is critical to a privilege claim's evaluation.¹⁷⁶ But the court has discretion to determine the quantity of documents it needs to review to assess privileges.¹⁷⁷

"To the extent the court sustains the objection or privilege claim, the responding party has no further duty to respond to the request[.]"¹⁷⁸ However, to the extent the objection or privilege claim is overruled, the responding party must produce the requested documents or provide the requested information within thirty days after the court's ruling or at such time as the court orders.¹⁷⁹ Mandamus relief is appropriate when a trial "court erroneously orders disclosure of privileged information"¹⁸⁰ or discovery that exceeds the scope permitted under the Texas discovery rules.¹⁸¹

An interesting question is how a court faced with a proper objection to a partially objectionable written-discovery request should proceed. In such a case, the court has two options: it can either narrow the request or sustain the objection in its entirety.¹⁸² In most instances in which the discovery request is only partially objectionable, the appropriate course is to narrow the request so that is proper. As one federal court explained:

It is within the discretion of a court ruling on a motion to compel to narrow the requests rather than sustain the responding party's objections to them in toto. In doing so, the court effectively sustains an objection that the requests are vague, ambiguous, or overbroad in part, and overrules it in part.¹⁸³

This approach is consistent with Texas Rule 193.2(a), which allows parties to object to written-discovery requests in part,¹⁸⁴ and Texas Rule 192.6(b)(4), which allows a court to enter a protective order that "the discovery be undertaken only . . . upon such terms and conditions . . . directed by the court[.]"¹⁸⁵ It also is consistent with the interests of judicial economy because it will prevent the requesting party from serving additional interrogatories and production requests to obtain the information or material and the expense, time, and delay associated with a second motion to compel when the responding party invariably interposes the same objections to the new dis-covery.¹⁸⁶

Finally, a party who withholds information or documents from discovery under an objection or privilege claim, even one that has been sustained by the trial court, cannot use the information or documents at any hearing or trial "without timely amending or supplementing the party's response to that discovery to reveal the withheld information."¹⁸⁷

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Notes:

^[160] Tex. R. Civ. P. 193.4(a); see Hagan v. Pennington, No. 05-18-00010-CV, 2019 Tex. App. LEXIS 5101, at *46, 2019 WL 2521719 (Tex. App.—Dallas June 19, 2019, no pet.) (mem. op.) ("Once a party has asserted a claim of privilege, the trial court may, upon the request of any party, conduct a hearing to determine whether the discovery should be disallowed."); In re AEP Tex. Cent. Co., 128 S.W.3d 687, 690 (Tex. App.—San Antonio 2003, orig. proceeding) ("[Texas] Rule 193.4(a) authorizes either the requesting or objecting party to request a hearing on objections to discovery."); In re Born, No. 01-01-00971-CV, 2002 Tex. App. LEXIS 3279, at *6, 2002 WL 937663 (Tex. App.—Houston [1st Dist.] May 9, 2002, orig. proceeding) (mem. op.) (same).

^[161] Balay v. Gamble, No. 01-10-00017-CV, 2011 Tex. App. LEXIS 4576, at *19, 2011 WL 2435929 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.); Roberts v. Whitfill, 191 S.W.3d 348, 361 n.3 (Tex. App.—Waco 2006, no pet.).

^[162] Trahan v. Lone Star Title Co., 247 S.W.3d 269, 282-83 (Tex. App.—El Paso 2007, pet. denied) ("[T]he case law indicates that as a general rule, only failure to obtain a pretrial ruling on discovery disputes constitutes a waiver of a claim for sanctions based on that conduct."); Klein & Assocs. Political Relations v. Port Arthur Indep. Sch. Dist., 92 S.W.3d 889, 894 (Tex. App.—Beaumont 2002, pet. denied) ("The Texas Supreme Court has explained that 'because the party requesting discovery is in the best position to evaluate its need for information . . ., the orderly administration of justice will be better served by placing responsibility for obtaining a hearing on discovery matters on the party requesting discovery.'" (quoting McKinney v. Nat'l Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989))).

^[163] In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 226-27 (Tex. 2004) (orig. proceeding) (per curiam) (rejecting argument that plaintiffs' global challenge to privilege assertions was insufficient to place those assertions at issue, reasoning in part that Texas Rule 193.4(a) "does not contain a requirement that the party seeking discovery specify their rationale for objecting to each document before requesting a hearing").

^[164] See State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (orig. proceeding) ("The burden is on the party seeking to avoid discovery to plead the basis for exemption or immunity and to produce evidence supporting that claim."); In re DISH Network, LLC, 528 S.W.3d 177, 181 (Tex. App.—El Paso 2017, orig. proceeding) ("The party resisting discovery bears the burden of proving an applicable privilege."); In re Univar USA, Inc., 311 S.W.3d 175, 180 (Tex. App.—Beaumont 2010, orig. proceeding) ("[T]he general rule is that a party resisting discovery has the burden to plead and prove the basis for its objections."); In re Rogers, 200 S.W.3d 318, 321-22 (Tex. App.—Dallas 2006, orig. proceeding) ("In the trial court, the party objecting to discovery bears the burden of proving the request is outside the rules' guidelines."); In re AEP Tex. Cent. Co., 128 S.W.3d 687, 690 (Tex. App.—San Antonio 2003, orig. proceeding) ("If a hearing is held, the party who has objected or asserted a privilege must present any evidence necessary to support the objection or privilege.").

^[165] See In re Marshall, 617 S.W.3d 670, 676 (Tex. App.—San Antonio 2021, orig. proceeding) ("As to any claim of attorney-client privilege, 'the party asserting a privilege from discovery [has] the burden to produce evidence concerning its applicability. This may be accomplished by testimony or affidavit evidence sufficient to establish a prima facie case for the privilege.' . . . 'Texas law recognizes that a party asserting privilege may initiate its claim and establish a prima facie case of privilege by submitting evidence short of tendering...