A.  Discoverability of Witness Statements

Several of the reported cases under the new discovery rules to date have addressed issues relating to the discoverability of witness statements:

(1) Whether new Rule 192, which eliminates the "witness statement" exemption, applies to statements obtained prior to 1999.

(2) Whether particular witness statements are or can be shielded from discovery by privileges other than the "witness statement" or work product exemption.

(3) Whether particular statements fall within the definition of "witness statement" under Rule 192. This issue has increasing importance now that Rule 192 eliminates the former "witness statement" discovery exemption and provides that, unless another privilege applies, the statements are discoverable.¹

The following cases have addressed some or all of these issues.

1.  In re W&G Trucking, Inc., 990 S.W.2d 473 (Tex. App — Beaumont 1999, orig. proceeding).

This case addressed the discoverability of a 1998 statement given by a defendant, Jamison, to an investigator for his insurer before suit was filed. The trial court ordered it produced. Relators, defendants, made two arguments. First, they contended the statement was a privileged attorney-client communication. Second, relators argued that application of the new discovery rules to the statement — which would have the effect of revoking or stripping the "witness statement" discovery exemption, which had attached at the time the statement was obtained—would violate paragraph 5 of the November 9 Order. Paragraph 5 of the November 9 Order, again, provides:

The application of these revised rules in pending cases. . . must be subject to Rule 1 of the Rules of Civil Procedure, must be consistent with the purposes of the revised rules to streamline discovery procedures and reduce costs and delays associated with discovery practice, and must be without undue prejudice to any person on account of the transition from the prior rules."²

Relators contended that because the investigator obtained the statement in the belief that it would remain protected under the witness statement exemption, eliminating the exemption would cause them "undue prejudice" on account of the transition to the new rules. Additionally, relators argued that elimination of the exemption would impair their vested rights, in violation of Rule of Civil Procedure 1.³ The Ninth Court of Appeals rejected both these arguments.

The court first dismissed the argument that the statement was a privileged attorney-client communication as "not supported by the facts." "The record does not establish that Jamison was a "client" [of the insurance company], that the agent represented Jamison, or that the agent took Jamison’s statement to facilitate rendering him legal services." In re W&G Trucking, Inc., 990 S.W.2d at 475.

As for the second argument, the court acknowledged that "[a]s a general rule[,] procedural rules apply to suits filed before the effective date of the rules, provided no vested right is impaired,"⁴ but concluded that no such rights would be impaired by application of the new discovery rules to compel production of the statement. It reasoned:

In this instance the repeal of Rule 166b and the adoption of Rule 192 have not deprived relators of a defense or other substantive right. Even under the old rules, the investigator was not assured that the statement would not be subject to discovery because Rule 166b allowed trial courts to disregard its exemptions upon a showing of substantial need and undue hardship. Accordingly, we hold that Rule 192 is applicable to cases pending on January 1, 1999 and that its application in this case has neither violated nor caused relators undue prejudice.

Id. at 475-76.

2.  In re Team Transport, Inc., 996 S.W.2d 256 (Tex. App. — Houston [14th Dist.] 1999, orig. proceeding).

In this mandamus proceeding, relator complained that the trial court abused its discretion in ordering relator to produce a 1998 letter from two of its employees to its insurance carrier. The first paragraph of the letter contained a description by one of relator’s employees, Johnnie McIlveen, of a warehouse accident out of which the lawsuit arose. The second paragraph contained commentary by one of relator’s vice presidents, Robert Eagleton, concerning procedures used at the warehouse, as they related to the accident as recounted by Mr. McIlveen. In April 1999, respondent moved to compel production of investigative reports concerning the accident. Relator asserted that the letter was shielded from discovery as work product and submitted affidavits proving up the letter as having been obtained in anticipation of litigation. On May 3, 1999, the trial court ordered the letter produced as a witness statement.

Relator asserted two arguments before the court of appeals. First, while "all but conced[ing]" that the first paragraph of the letter, McIlveen’s statement, was a "witness statement," relator contended that the second paragraph, Eagleton’s commentary, was work product that was not a witness statement.⁵ Relator relied on the fact that Eagleton, unlike McIlveen, did not actually witness the accident. Second, in a manner similar to the relator in W&G Trucking, relator argued that application of the new discovery rules to compel production of the pre-1999 witness statement was unduly prejudicial and violated its due process right under the federal and state constitutions, which in turn violated paragraph 5 of the November 9 Order and Rule 1. In re Team Transport, Inc., 996 S.W.2d at 259-60.

The court of appeals rejected both arguments. It found no abuse of discretion in the trial court’s determination that the Eagleton paragraph was a witness statement:

Eagleton relates the normal procedures for warehousemen such as [plaintiff], used at the Michelin warehouse. Because those procedures pertain to the accident, they were included as a follow-up to McIlveen’s witness statement. They are part and parcel of that statement.

Id. at 259. The court added:

Without citation of authority, relator argues the Eagleton paragraph could not be a witness statement because Eagleton was not a witness to the accident. The rules do not mandate such a requirement. A person with knowledge of relevant facts need not have personal knowledge of the facts. See Tex. R. Civ. P. 192.3(c). Further, the statement of any person with knowledge of relevant facts is discoverable. See Tex. R. Civ. P. 192.5(h) (emphasis added).

Id.

The court of appeals then relied on W&G Trucking in rejecting the second argument, holding that because the letter might have been discovered under the former discovery rules through the substantial need and undue hardship exception, application of the new rules did not deprive relator of a defense or substantive right. Id. at 259-60.

3.  In re Jimenez., 4 S.W.2d 894 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).

Plaintiffs in an auto wreck case served requests for disclosures in January 1999 seeking, among other things, witness statements.⁶ Defendant purported to withhold his own recorded statement under the work product privilege⁷ Plaintiffs then moved to compel production of the statement. The trial court denied the motion, ordering that plaintiffs were not entitled to obtain "the witness statements of Defendant, related to this case, as they are not discoverable." In re Jimenez, 4 S.W.2d at 894. Plaintiffs sought mandamus.

Neither party disputed that the new discovery rules governed the dispute or that the statement in question was a witness statement under the definition in Rule 192.3(h). Id. at 895 & n.2. Plaintiffs argued that the trial court abused its discretion because (1) Rules 192.3(h) and 194.2(i) make witness statements discoverable, regardless when made; (2) witness statements are expressly exempted from the work product privilege under Rule 192.5(c); and (3) under Rule 194.5, no objection or work product assertion is permitted against a request for disclosure. Id. at 895. Defendant responded that his statement, made to his insurance carrier, was work product, was made in anticipation of litigation, and was not discoverable. He relied in part on comment 9 to Rule 192, which, again, provides:

Elimination of the "witness statement" exemption does not render all witness statements automatically discoverable but subjects them to the same rules concerning the scope of discovery and privileges applicable to other documents and things.

Defendant argued that because witness statements were "subject[] . . . to the same rules concerning the scope of discovery and privileges applicable to other documents and things," they were protected by the work product privilege and that, therefore, comment 9 effectively trumped the exception for witness statements under Rule 192.5. Id.

The court of appeals conditionally granted mandamus. It observed that, as plaintiffs argued, witness statements are expressly exempted from the work product privilege under Rule 192.5(c). Id. at 896. The court then rejected defendant’s argument concerning comment 9:

In circumstances like these, when the only privilege asserted is "work product" and when rule 192.5(c) plainly states that a witness statement, even if made in anticipation of litigation, is not work product protected from discovery, the Court rejects [defendant’s] arguments.

Id.

B.  Discovery Concerning Bias of Experts

In re Doctors’ Hospital of Laredo, 2 S.W.2d 504 (Tex. App. — San Antonio 1999, orig. proceeding)

Rule 192.3, the rule defining the scope or permissible subject matter of discovery, entitles parties to discovery concerning testifying experts or "consulting plus" experts including, among other things, "any bias of the witness." Tex. R. Civ. P. 192.3(g).⁸ No express entitlement to discovery of an expert’s bias appeared in the former discovery rules. In In re Doctors’ Hospital of Laredo, 2 S.W.2d 504 (Tex. App. — San Antonio 1999, orig. proceeding), the Fourth Court of Appeals addressed whether this provision overruled or superseded Russell v. Young, 452 S.W.2d 434 (Tex. 1970), which held that income tax schedules and calendars of nonparty witnesses generally are not discoverable to show bias.

The dispute arose in the context of a medical malpractice action. After Doctors’ Hospital designated Dr. Herbert Grossman as a testifying expert, plaintiffs Enedelia and Humberto Martinez noticed the doctor’s deposition and subpoenaed his income tax schedules and personal calendar.9 The hospital moved to quash. Relying on Rule 192.3(e)(5), the Martinezes argued that they were entitled to the documents to show Dr. Grossman’s bias. The trial court ordered the documents produced.

A majority of the Fourth Court of Appeals—Green and Angelini, JJ.—held that Rule 192.3(e)(5) did not overrule Russell v. Young and that the trial court abused its discretion. The majority observed that evidence of a witness’ bias has long been relevant, admissible, and discoverable, although books and financial records of a nonparty witness—due in part to privacy concerns— have, under Russell, generally been held not to be discoverable to show bias. Id. at 506. It then reasoned: "We have found no historical commentary that would suggest that the rule drafters intended to overrule Russell and its progeny. The majority concluded: "We therefore read the rule to permit discovery of bias evidence, other than the personal financial records and appointment books of nonparty witnesses." Id. at 506-07.

Chief Justice Hardberger concurred in the ruling but disputed whether it was necessary for the majority to address the discoverability of Dr. Grossman’s personal financial records. He would have found that the trial court abused its discretion by failing to consider whether the information was available from a less intrusive source. Id. at 507-08 (Hardberger, C.J., concurring). Hardberger also expressed reservations that the majority "could be incorrect" about Rule 192.3, pointing out that one commentator had suggested that Rule 192.3 "probably may" overrule Russell. Id. (quoting Michol O’Connor, et. al., O’Connor’s Texas Rules Civil Trials 309 (1999)).

C.  Proving Up Objections and Privileges; In General

1.  In re Union Pacific Resources Co., ___ S.W.2d ___, 43 Tex. S.Ct. J. 145 (Tex. Dec. 2, 1999) (orig. proceeding) (not yet released for publication).

In this case, the Texas Supreme Court addresses whether a party objecting to discovery on the basis of relevance must adduce evidence to support its objection. Union Pacific sued Continental, its excess insurer, for defense costs and payments Union Pacific made on liability claims arising from a Corpus Christi refinery that it formerly owned. Continental served discovery requesting information pertaining to Union Pacific’s settlement of separate litigation with other insurers over a California waste disposal site. Continental claimed that the information was within the scope of discovery because it might include releases from the California litigation that extend to the Corpus Christi claims and could show that the California settlements had already compensated Union Pacific for its claims against Continental. Union Pacific objected on the basis that the requested discovery was not relevant¹⁰ to the Corpus Christi coverage dispute and Continental moved to compel. Neither side produced evidence in the hearing, nor did either side tender the agreements to the trial court for an in camera review.

The trial court ordered Union Pacific to produce the California settlement agreements with the dollar amounts of the settlements redacted. Continental again moved to compel, arguing that the dollar amounts were relevant. The trial court denied Continental’s motion and Continental sought mandamus. The Tenth Court of Appeals conditionally granted relief, holding that the trial court abused its discretion by not ordering full disclosure where Union Pacific had not offered evidence that the requested information was irrelevant. 990 S.W.2d 941, 944 (Tex. App.—Waco 1999, orig. proceeding).

Distinguishing earlier cases in which it required evidence to prove privileges or exemptions from discovery,11 the Supreme Court held that the court of appeals abused its discretion because no evidence was necessary for the trial court to determine the discoverability of the California settlement agreements.

Indeed, it is not clear what evidence could have been produced on the issue. The question was simply whether the settlement dollar amounts are pertinent to the issues in the current litigation. Continental’s sole argument was that the information concerning Union Pacific’s internal allocation and budgeting of settlement proceeds from the California litigation might show that it considered some of the funds attributable to the Corpus Christi litigation. The district court could determine without hearing evidence that the purpose for payment of the settlement proceeds was determined by the terms of the agreements, which had already been produced for Continental, and not by Union Pacific’s internal bookkeeping.

The Court opined that Rule 193.4, which governs hearings concerning written discovery, contemplated such a practice.

Neither Peeples nor Weisel requires evidence in support of an assertion relating to discovery when evidence is unnecessary to decide the matter. We made this clear in Former Rule 166b(4) of the Texas Rules of Civil Procedure, which required that "a party seeking to exclude any matter from discovery on the basis of an exemption or immunity from discovery . . . shall produce any evidence necessary to support such claim." The same provision has been carried over into current Rule 193.4(a), which states: "The party making the objection or asserting the privilege must present an evidence necessary to support the objection or privilege. As the rule recognizes, evidence may not always be necessary to support a claim of protection from discovery.

Id.

2.  In re Monsanto Co., 998 S.W.2d 917 (Tex. App.—Waco 1999, orig. proceeding).

This mandamus proceeding, which arose out of a suit by farming concerns against a seed manufacturer, illustrates the application of the new "subject matter" attorney-client privilege,¹² the new work product privilege of Rule 192.5, and the new procedures for asserting privileges under Rule 193.3. The parties agreed that these new rules were applicable. In re Monsanto, 998 S.W.2d at 924.¹³

Monsanto had claimed either or both the attorney-client and work product privileges as to several hundred documents by following the procedures in Rule 193— it served a withholding statement; then, upon request, a privilege log; and then sought to prove up the privileges by affidavits at a hearing. The trial court also inspected the documents in camera. The court of appeals noted that, ironically, Monsanto was not required to follow these procedures as to [m]any of the documents claimed as privileged" because, in its view, they fell within Rule 193.3(c)’s exception to the withholding requirements for case- specific attorney-client communications and attorney work product.¹⁴ However, because Monsanto had already listed the documents in the privilege logs and had provided proof, the court concluded that "this exception has no applicability here," id. at 924 & n.6, and proceeded to evaluate the privilege claims under the general Rule 193 procedures.

Generally speaking, there are three parts to In re Monsanto: (1) the court’s general discussion of the new subject matter attorney-client privilege, new Rule 192.5 work product privilege, and Rule 193.3 procedures; (2) the court’s application of the Rule 193.3 procedures; and (3) the court’s application of the attorney-client privilege and work product in its review of the trial court’s in camera inspection.

a.  General Discussion.

The court first reviewed at length the subject matter attorney-client privilege, the new Rule 192.5 work product privilege, and the new procedures of Rule 193. Among its other observations:

• The court characterized Rule 192.5 as incorporating the former attorney-client privilege and "party communication" privileges, while deleting the "subsequent to occurrence" and "particular . . . pending suit" limitations. Id. at 923 n.3.
• The court summarized the requirements of Rule 193.3 as follows:

Relators had the burden to claim the privilege(s) in a response or separate document . . . . [Tex. R. Civ. P.] 193.3(a). They had to claim a specific privilege and identify each document in such a way as to allow the Plaintiffs to assess the applicability of that privilege and establish proof of the privilege at the hearing. Id. 193.3(b).

Id. at 925.

• Later, the court described the subject matter test for attorney-client privilege as "very broad" but not unlimited:

We recognize that it might be argued that all communications between corporate representatives could be claimed as privileged on the basis that "the legal department can better represent us if we keep them informed." We reject that assertion. We do not believe that it is necessary for the legal department to be advised of every development out in the field, no matter how minute.

Id. at 930. But the court acknowledged that once litigation is anticipated, events in the field might have more significance such that the work product privilege could apply. Id.

b.  Application of Rule 193.3; Privilege Logs.

The court then addressed whether Monsanto had complied with the requirements of Rule 193 as to four separate privilege logs of documents, labeled "PR-RS," "PR-DS," "PR-INV," and "PR-AS." It first rejected an argument that Monsanto had waived privileges as to certain of the documents by referencing some of their contents during the hearing. "Although Relator’s oral description of the contents of the documents gave, in some instances, more information than they had listed on the corresponding privilege log, we do not believe that the description was a significant part of the privileged matter." Id. at 925-26 (citing Tex. R. Evid. 511).

The court also rejected an argument that the affidavits were not properly before the court because they were never formally offered into evidence during the hearing. It dismissed this assertion because "the record of the hearing indisputably shows that the parties and the court undisputably considered the affidavits. Although formal admission into evidence would be better, we have held under these circumstances no formal offer into evidence is necessary." Id. at 926 (citing Osborne v. Johnson, 954 S.W.2d 180, 186 (Tex. App.—Waco 1997, orig. proceeding).

The court next rejected an assertion that the affidavits were invalid because they were not based on the personal knowledge of the affiants. First, the court pointed out, there was no ruling on plaintiffs’ objections to the affidavits in the record. Second, the court concluded that the affidavits did, in fact, establish the personal knowledge of the affiants. The court rejected the argument that some of the affidavits predated the date of privilege logs to which they referred. It reasoned that "[i]t is the documents themselves, not the privilege log listing the documents, which contain the privileged material and about which the affiant has personal knowledge. Id. & n.11.

The court then examined each of the affidavits to determine if they proved the facts supporting the claims of privilege asserted as to each of the documents listed on the privilege log. It determined that the affidavits of two Monsanto attorneys, which recited the elements of the attorney-client privilege and work product privilege, and where these facts were not controverted, made a prima facie case of attorney-client privilege and "core" work product privilege as to the documents listed on the PR-RS and PR-DS logs, respectively. Id. at 927-29. However, it held that because the affidavits submitted to prove the privileges asserted as to the PR-INV and PR-AS logs referenced only a few of the documents listed in those logs, Monsanto failed to make a prima facie showing of privilege as to the other documents listed in those logs. Id. at 928.

c.  Application of Privileges; In Camera Inspection.

Although stating that the results of the hearing could have ended the trial court’s inquiry, the court of appeals noted that "[t]he rules . . . allowed Respondent to determine whether an in-camera inspection of any or all of the documents was necessary." Id. at 928-29. It then reviewed the trial court’s in camera inspection of the documents by exercising its discretion to conduct its own in camera inspection. When so doing, it sought to (1) ascertain whether the documents matched their descriptions in the privilege logs; (2) determine, with respect to the PR-RS and PR-DS logs (for which a prima facie showing of privilege was made), whether any document so contradicted the affidavits as to destroy the claim of privilege as to that document; and (3) determine, with respect to the documents listed in the PR-INV and PR-AS logs (for which a prima facie showing of privilege was not made), whether any document, in conjunction with the other proof presented,¹⁵ established a privilege as to that document. Id.¹⁶

As for its first inquiry, the court determined that the privilege logs fairly described the documents, thus complying with Rule 193.3(b). Id. at 930. Turning to the second inquiry, the court held that none of the documents listed in the PR-DS log so contradicted the supporting affidavits as to destroy the claimed privileges, but that some of the documents in the PR-RS log did. In particular, it held that two documents showing recipients that were not proven to be Monsanto "representatives of the client" were not "confidential communications" falling within the attorney-client privilege. Id. at 930-31.¹⁷ The court also held that three documents contained in the PR-RS materials that were not listed on that group’s log would be disclosed, as the issue of whether they were privileged was not properly preserved. Id. at 931.¹⁸

As for the third inquiry, the court determined that many of the documents on the PR-AS and PR- INV logs that appeared to have been circulated between and among Monsanto employees and their lawyers were privileged attorney-client communications or work product. However, it determined that other documents on those logs, which failed to show either or both that the authors were Monsanto employees, lawyers or representatives, or who the recipients were, did not show that Monsanto was entitled to claim a specific privilege as to those documents. The court also held that a memo to all employees on the PR-AS log "exceeds the scope of the asserted privilege." Id.

* * *

Based on the foregoing analysis, the court of appeals concluded that all but approximately 20 of the documents at issue were established to be privileged.¹⁹

D.  Application of New Supplementation Rules

Rutledge v. Staner, __ S.W.2d __, 1999 WL 1272944 (Tex. App. — Tyler Dec. 30, 1999, orig. proceeding) (not yet released for publication)

Former Rule 166b.6 permitted late supplementation only upon a showing of "good cause." Rule 193.6, on the other hand, permits late supplementation upon a showing of either "good cause" or lack of unfair surprise or unfair prejudice.²⁰

In Rutledge v. Staner, the Twelfth Court of Appeals, applying Rule 193.6’s more flexible standard for late supplementation, held that the trial court erred in refusing to allow late designation of a fact witness.

Rutledge was a declaratory judgment action arising out of a dispute between two adjacent landowner over the use of a road. Staner had listed Joe Chaffin, Anderson County Commissioner, as a fact witness; however, Rutledge did not list him.²¹ At trial, Rutledge attempted to call Chaffin but Staner objected. The trial court sustained this objection, holding that Rutledge had not shown good cause for late supplementation. Rutledge then reurged that Chaffin should be permitted to testify in light of new Rule 193.6 because Staner, having himself designated Chaffin as a fact witness, could not have been "unfairly surprised" or "unfairly prejudiced" when Rutledge attempted to call him. The trial court, however, again refused to let Chaffin testify because it did not believe good cause had been shown.

The Twelfth Court held, without elaboration, that "the trial court erred when it refused to allow the witness to testify under Tex. R. Civ. P. 193.6(a)(2)." However, it ultimately held that the trial court’s failure to permit Chaffin to testify was harmless error.

E.  Issues Relating to Rule 202 Depositions

Valley Baptist Medical Center, __ S.W.2d __, 1999 WL 1001102 (Tex. App.— Corpus Christi Nov. 4, 1999, orig. proceeding) (not yet released for publication)

New Rule 202 combines Former Rule 187, which governed depositions to perpetuate testimony, and Former Rule 737, the bill of discovery, into a single rule governing all pre-suit depositions.22 Under Former Rule 187, orders granting depositions to perpetuate testimony were not independently appealable because they were ancillary to an existing or anticipated suit.²³ But orders granting bill of discovery depositions could be appealable depending on the circumstances in which they were granted. Where a bill of discovery was deemed ancillary to or essentially part of another suit, whether ongoing or contemplated, the bill was held to be an interlocutory discovery order and not appealable.²⁴ But where the bill of discovery was a separate suit having its sole object the obtaining of the information requested, the order was considered final for appeal.²⁵

In Valley Baptist Medical Center, the Corpus Christi Court of Appeals evaluated whether an order granting a Rule 202 deposition that purportedly had been sought to investigate a claim was appealable. Plaintiff Esther Gonzalez brought a petition for a Rule 202 deposition of Valley Baptist Medical Center and Dr. Erwin Mierisch. Gonzalez purported to seek the depositions to investigate potential claims—as opposed to obtaining testimony for an anticipated suit—against the unknown manufacturer of a fetal extraction device used by Valley Baptist and Dr. Mierisch in delivering Gonzalez’s son. Gonzalez did not purport to anticipate a suit against Valley Baptist or Dr. Mierisch or to desire to investigate potential claims against them. But, in her petition seeking the Rule 202 deposition, she listed both as persons who may have interests adverse to hers in any anticipated suit.²⁶

The trial court granted the petition, permitting Gonzalez to depose both Dr. Mierisch and a corporate representative of Valley Baptist. Valley Baptist filed both a notice of appeal and a petition for mandamus in the court of appeals challenging the order on a number of grounds. The court of appeals first stayed the depositions pending resolution of the mandamus and then denied the mandamus without opinion. Subsequently, Valley Baptist sought mandamus with the Texas Supreme Court, which denied relief without written opinion.

After the Supreme Court denied mandamus, the court of appeals again stayed the depositions. Gonzalez subsequently filed a motion to dismiss the still-pending appeal for want of jurisdiction, contending that the order authorizing the depositions was interlocutory and not appealable. In Valley Baptist, the court of appeals agreed. Applying prior case law addressing the appealability of bills of discovery, it reasoned:

Whether a bill of discovery proceeding is ancillary to or essentially a part of a "primary" suit is not always clear. When a subsequent action is filed against the party from whom discovery was ordered, clearly the pre-suit discovery was ancillary to the suit. We believe that direct appeal [from the order granting the deposition to investigate claims] should be limited to situations where the discovery order sought is clearly a separate action against a third party.

* * *

In the instant case, Gonzalez seeks discovery of information related to the birth and delivery of the baby from the hospital and doctor who performed the delivery. The reason is to investigate claims for damages for injuries that occurred during the delivery. We hold that this pre-suit discovery proceeding is incident and ancillary to a contemplated suit against Valley Baptist and/or the doctor. Accordingly, this court is without jurisdiction to hear this appeal.

The court of appeals rejected the argument that the order granting the depositions was a separate, independent action because Gonzalez purported to be investigating claims against only a third party—the unnamed manufacturer of the fetal vacuum extractor—and not claims against either of the deponents. In so doing, it looked beyond the express assertions in the petition to what it viewed as the substance of the claims and their practical relationship to the underlying facts:

While Gonzalez only seeks information related to the fetal vacuum system used in delivering Michael Jr., the suit contemplated is one to recover injuries which occurred during the birth. Gonzalez named the doctor and the hospital in her petition as persons who may have interests adverse to hers in any anticipated suit. Even though Gonzalez targets only the manufacturer of the fetal extraction device, it is difficult to imagine that the doctor who performed the delivery and the hospital where the delivery was performed would not also be contemplated defendants in such an action. If Gonzalez had stated that this bill of discovery was intended to seek information regarding the potential liability of the hospital and doctor, rather than the manufacturer of the medical device, the law is clear that interlocutory appeal would not be an available remedy for an order granting discovery under Rule 202. We see no meaningful difference where the defendants from whom discovery is sought are clearly contemplated defendants in a subsequent proceeding under the particular facts of the case, regardless of the petitioner’s express statements in the petition.

Id. at *₃. The court of appeals additionally observed that Rule 202 contained a number of protections for the parties being deposed and that mandamus was available to remedy any clear abuses of discretion by the trial court. For example, the court of appeals suggested, the trial court might require the petitioner to post a bond to cover the deponent’s costs "when it appears possible that plaintiff has used the procedure for improper purposes or to require plaintiff to bear the risk of deposing an entirely innocent potential defendant." Id. at *₄.

The court of appeals concluded that the normal protections against discovery abuse, such as protective orders and motions to quash, were "more appropriate" than direct appeal. Id. "In recognizing that the Rule 202 procedure generally benefits potential defendants overall by allowing plaintiffs to weed out unmeritorious claims through discovery without having to file suit, we find that the slight risk of harm that may occur is properly borne by defendants for situations where a bill was improvidently granted by the trial court but the circumstances of its granting are not egregious enough to warrant mandamus relief and where a later suit does not follow." Id.

F.  Reserved for Expansion

1. Rule 192.3(h), 192.5(c)(1).
2. November 9 Order 7 ₅; see Part II(A)(1), above.
3. Rule 1 provides, in relevant part:
      The proper objective of rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of the rights of litigants under established principles of substantive law.
4. See id. at 475 (citing Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490 (1933), and court of appeals cases).
5. Relator added that the plaintiffs failed to demonstrate the "substantial need or "undue hardship" necessary to obtain discovery of work product. See Rule 192.5(b)(2). Besides finding that the letter was a discoverable witness statement, the court rejected the "substantial need" and "undue hardship" argument because relator had not provided the reporter’s record from the motion to compel hearing. In re Team Transport, Inc., 996 S.W.2d at 259.
6. See Rule 194.2(i).
7. See Rule 193.3(a).
8. See also Tex. R. Civ. P. 192.7(c) & (d).
9. The Martinezes also sought the deposition and income tax records of a second defense expert, Dr. John Seals, which the trial court ordered produced. The court of appeals held that the trial court abused its discretion because the Hospital had de-designated Dr. Seals from a testifying to consulting expert. Id.
10. See Rule 192.3(g) (permitting discovery of "the existence and contents of any relevant portions of a settlement agreement").
11. (Citing Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex. 1985), and Weisel Enter, Inc. v. Curry, 718 S.W.2d 56 (Tex. 1986) (per curiam)).
12. See Tex. R. Evid. 503(b).
13. The court of appeals also noted that Monsanto had invoked new Rule 193.3(d) to reclaim two inadvertently produced documents, and that plaintiffs had complied. The court, however, ultimately held that Monsanto failed to prove a privilege with respect to those documents and ordered them produced. In re Monsanto, 998 S.W.2d at 921 n.2.
14. Rule 193.3(c).
15. The court observed that "[b]ecause Relators adduced evidence in the form of affidavits, we need not decide whether the current rules still allow a claim of privilege to be based only on the disputed information or material itself. Id. at 929 n.15 (citing Weisel Enter., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (orig. proceeding)).
16. The court described the process by which it conducted its in camera inspection:
       The justices assembled in the courtroom and examined the disputed documents, one document at a time, and discussed those necessary to our decision. We considered each document, in light of the affidavits, on our own. We did not use information contained in one document to "bootstrap" a privilege to another document. In other words, one document to which a privilege was established or asserted was not considered as evidence to establish a privilege asserted to another document. Additionally, we did not consider any information listed on the privilege logs as evidence. The logs were not incorporated into any affidavits and thus the information contained in the logs is no more than an unproven assertion like any other pleading. Id.
17. By contrast, while some of the documents on the PR-DS log had an outside public relations firm as a recipient, the court held that these documents did not destroy the attorney-client privilege where uncontroverted affidavit testimony stated that the recipients were agents or representatives of Monsanto. Id. The court cautioned, however, that there might be instances in which disclosure to an outside firm is so unrelated to a privilege as to constitute waiver. Id. at 931 n.21.
18. The court also addressed the status of certain reports in the PR-RS group written by Monsanto attorneys with no designated recipient. It characterized these reports as core work product but noted that Monsanto asserted on the privilege log only attorney-client privilege and not work product as to these documents. The court, however, ruled that these documents did not destroy the privilege because (1) one of the affidavits characterized the documents on the PR-RS log as either "communications" or work product; and (2) Monsanto had argued that the reports in question were "communicated" within the meaning of Rule 503. Id.
19. The court rejected a claim that the privileged documents could be discovered through the crime-fraud exception to the attorney-client privilege. Plaintiffs offered as proof an affidavit of one of their lawyers purporting to show that Monsanto knowingly made false statements when selling cotton seed to s. The court concluded that the affidavit did not establish that legal services were obtained to commit or perpetuate fraud and failed to establish a relationship between the documents for which the privilege is asserted and the claim of fraud. Id. at 934.
20. Rule 193.6(a).
21. Although the opinion does not expressly state, it seems implicit from the context that both parties served discovery on each other requesting identification of persons with knowledge of relevant facts. But the opinion does not elaborate as to whether these requests were interrogatories or requests for disclosure.
22. See Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions (1998), at 17.
23. See, e.g., Office Employees Int’l Union Local 227 v. Southwestern Drug Corp., 391 S.W.2d 404, 406-07 (Tex. 1965).
24. See McDonald Texas Civil Practice § 12:6[c] (1992 & Supp. 1999).
25. See id.
26. See Rule 202.2(f)(1). This procedure is required only if the petitioner anticipates a suit, as opposed to merely desiring to investigate a potential claim. Id.