### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00134- CV

In re Richard J. Mc Intyre

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R AN D U M O P I N I O N

Relator R ichar d J

. McI

nty re filed a petiti on for writ of m andamus alleg ing that the district court abused its discretion by order ing him to produce documents containing information protect ed b y t h e attorney -client and work-pr oduct privileg es and to appea r for a deposition permitting inquiry into privileg ed matters. For the rea sons that foll o w, we will conditionally g rant the w rit.

BACK GR OUND

The challeng ed order stems from a motion t o co m p el in a Texas suit filed by rea lparty -in-intere st Austin Manufa cturing Service s, I nc. (AMS) ag ainst Be n Porter, David C hessler, and Scott Br adfor d (De fenda nts). AMS’s suit alleg es that De fe n d an t s , as senior manag ement of GPS I ndustries, I nc. (GPSI ), made false repr esenta tions a nd willful nondisclosure s inducing AMS
to continue manufa cturing and shipping g olf-ca rt mounted g lobal-positioning sy stems to GPSI and its customers when GPSI knew it would be unable to pay AMS and when Def endants planned to take GPSI into bankruptc y . AMS soug ht discovery to deter mine the ear liest date that Def endants beg an pursuing bankruptc y

protec tion for GPSI

.McI nty re, a Florida attorney and nonparty to AMS’s suit, s er v ed as GPSI ’s counsel for its Chapter 11 bankruptc y proce eding in Tampa. AMS serve d McI nty re with discovery , 1 including reque sts for production and a d ep o s i tion notice with subpoena duces tecum, requiring h i m to appea

r for his deposition in Dallas and to produce documents responsive to six re q u es t s that, in GPSI ’s view, infr inge d on the attorne y -client a nd work-pr oduct privileg es. McI nty re filed

a motion to quash and for protec tive order but pro d u ce d approximately 980 pag es of documents
to AMS. McI nty

re also had his deposition t ak en in Tampa. At the beg inning of his deposition, McI nty re asser ted the exis tence of an attorney -client privile ge b etween himself and GPSI and betwee n himself and GPSI ’s succe ssor, GPS I ndustries, L L C (GPSI L ), and a work-pr oduct privileg e for work perf

ormed in connec tion with the bankruptcy ca s e. McI nty re declined to answe r certain questions—including when he was fi rs t contac ted by GPSI for leg al advice associate d with the bankruptc y

—asser ting that GPSI L , as GPSI ’s succe ssor and curr ent holder of the privileg e, had not authorized him to disclose the reque sted information.

The trial court held a hear ing on AMS’s motion to compel and McI nty re ’s motion to quash and for protec tive order , resulting in the “Order G ranting Motion to C ompel Production 2 of Documents of Non-Party Richard McI nty re.” The order require d McI nty re to produce documents

conce rning his eng ag ement as GPSI ’s bankruptc y counsel, such as billing statements and invoices,

The Florida Ba

nkruptcy is sty led In re GPS Industrie s , Inc ., Case No. 8:09-bk-16766-CPM, 1 in the United States Ba

nkruptcy Court, Middle District of Florida , Tampa Division. McI nty re asser ts that GPSI sold “substantially all of its assets” v i a t h e bankruptc y to GPS I ndustries, L L C, which boug ht the assets as a

“g oing c oncer

n” and a ssumed control of GPSI ’s oper ations. The trial court’s order does not addre ss McI nty re’ s motion to quash and for protec tive order 2 but the relief

g rante d to AMS effe ctively denied the c ompeting r elief tha t McI nty re soug ht. 2inclu d i n g specific ally an invoice that he revie wed during his deposition. Howeve r, the order 3 allowed McI nty

re to reda ct information protec ted by the attorney -cl i ent privileg e—including the substance of any communications betwee n GPSI and McI nty re—f rom the do cu m ents that he produce d. The court also order ed McI nty re’ s deposition to be taken at his office in Tampa, during which AMS cou ld a s k him about “non-pr ivilege d” matters, including “the date [he] was first reta ined

or consulted, the circ umstances reg arding such eng ag ement or consultation, any meeting s, persons prese nt at such mee tings, leng th of meeting s, and date s and times of mee tings.”

Seeking clar ification about the privileg ed documents and information excluded from the order , McI nty

re tender ed reda cted billing statements to the court (and an unreda cted version for in-ca mera revie w) and asked whether his reda ctions complied with the court’s order

. McI nty re also 4 anticipated that he would be asked some varia tion of the following questions at his deposition, and reque sted the court’s consideration of whether an asser tion of the attorney -client privileg e as to the italicized portion of the questions would be consistent with the cour t’s order :

1. When did y ou first consult with GPSI conce rning bankruptcy ? 2. When did y ou first co n s u l t with GPSI about potentially filing bankruptcy protection on behalf of GPSI ? 3. When did GPS I

eng ag e y ou to represent it in pursuing bankruptcy protec tion ?

The trial court’s order also require d McI nty re to produce eng age m en t letters or fee 3 ag ree ments (par

ticularly for eng ag ement as GPSI ’s bankruptc y counsel) and communications with Fa lconhea d Capital, L L C, a private- equity firm that bid on GPSI ’s assets on behalf of GPSI , L L C. McI nty re stat es that he is unawa re of any such enga g ement letters or fee agr eeme nts, and because he has complied with the order to produce his communications with Fa lconhea d Capital, he does not contest that portion of it. We have a lso reviewe d the unre dacte d billing statements that we re f iled under se al. 4 34. When did y ou first start working on pursuing bankruptcy protec tion for GPSI ?

I n a letter to the parties, the trial co u rt re s p o n d ed that all but three of the reda cted billing entrie s were discovera ble in unreda cted form and that all four of the a nticipated deposition inquiries wer e per

missibl e. McInty

re the n filed this petition for mandamus.

ANALYSIS To obtain mandamus relief , rela tor must show that the trial co urt clea rly abused its discretion and that the re l at o r has no adequate remedy by appea l

. In re Southwestern Bell Tel. Co. , 226 S.W .3d 400, 403 (Tex. 2007) (citin g In re Prudential Ins. Co. of Am. , 148 S.W .3d 124, 135-36 (Tex

. 2004)). A party has no adequate remedy b y ap p ea l when the trial court errone ously order s the disclosure of privileg ed information. In re Perry , 60 S.W .3d 857, 862 (Tex. 2001) (citing TransAmerican Natural Gas Cor p. v. Flores , 870 S.W .2d 10, 12 (Tex. 1994)). This case implicates both T e xa s and Florida law, prese nting a potential choice -of- law issue. Howeve r, the parties ag ree that Florida law applies to this dispute beca use it is the state with the most sig nificant rela tionship to the communications that are alleg ed to be privileg ed. See Ford Motor Co. v. Leggat , 904 S.W .2d 643, 647 (Tex. 1995) (noting that Restatement direc ts courts to identify state with most signific ant rela tionship to communication when deter mining whose law of privileg e should apply

) (citing Restatement (Second) of Conflict of L aws § 139 & cmt. e (1988))

. McI nty re arg ues in thr ee issues that Florida law prohibits mandatory disclosure of the information that the trial court order ed to be produce d, that he did not “wa ive” the attorney -client privileg e under Texas Rule of Evidence 612 b y re v i ew i n g a particula r attorney ’s fee invoice during a brea k at

4his deposition, and that he is not using the attorney -client privileg e “off ensively .” We addre ss eac h arg ument in turn.

Attor ney-client privilege

Florida St a

tu te s e c ti o n 9 0

. 5 02 sets forth the “lawy er- client privileg e,” which provides in releva nt part that:

A communication betwee n lawy er and client is “conf idential” if it is not intended to be dis closed to third persons other than t h o s e to whom disclosure is in further ance of the rendition of leg al service s to the client and those rea sonably nece ssary for the transmission of the communication. A client has a privileg e to ref use t o disclose, and to p re v en t an y other person from disclosing, the contents of confide ntial communications when such other person lear ned o f the communications beca use they wer e made in the rendition of leg al service s to the client. T h e p ri v ileg e may be claimed by : the client; a succe ssor, assig nee, trustee i n dissoluti on, or any simil ar repr esenta tive of an org anization, corpor ation, or association or other entity , either public or private, whether or not in exis tence ; or the lawy er, but only on behalf of the client. The lawy er’ s authority to claim the privileg e is presumed in the a

bsence of contra

ry evidenc e. Fla. Stat. § 90.502(1) (c) , (2), (3)( a),( d), (e) (2011); cf

. Tex. R. Evi d. 503. Simi larly , Rule 4-1.6 of the Flor i d a Rules of Professional Conduct states that unless cer tain exceptions apply , “[a] lawy er shall not reve al information rela ting to repr esenta tion of a client

. . . unless the client g ives informed consent.” Fla. R. Prof. Conduct 4- 1.6(a)

.

McI nty re arg ues that the information the trial court order ed him to prod u ce (e

. g. , unreda cted billin g re flec ting when GPSI first consulted him as bankruptc y counsel, when he consulted with GPSI about filing for b an k ru ptcy protec tion, and when GPSI eng ag ed him to

5repr esent it in pursu i n g b ankruptc y protec tion) is “informa tion rela ting to repr esenta tion of a

client” under Florida Rule of Professional Conduct 4-1.6. He contends that beca use GPSI L has not consente d to a waiver of the attorney -client privilege b y M cInty re, and beca

use none of t he rule’s exceptions apply , h e is p r o hibited from supply ing the reque sted information to AMS. AMS responds that mandamus relief is improper beca use the exis tence and structura l fra mework (i.e., “external trapping s”) of an attorney -client rela tionship—i ncluding the date of an attorney ’s consultation and billing information—is not privileg ed bec ause it does not see k the substance of any leg al advice

. The parties rely primarily on three decisions to establish whether AMS’s inquiry about the date of McI n t y re ’s initial consultation or eng ag ement as GPSI ’s bankruptc y counsel seeks the substance of their communications or mere ly “external trapping s” of the attorney -client rela tionship. See Thompson v. Cincinnati Ins. Co. , No. 3:10cv318/RS/ EMT, 2010 U.S. Dist. L EXI S 123948 (N.D. Fla. Nov. 9, 2010); Ferrari v. Vining , 744 So.2d 480 (F la. 3d DCA 19 99); Burt

v. Gove rnment Emps. Ins. Co. , 603 So.2d 125 (F la. 2d DCA 1992). McI nty re relies on Ferrari , in which a cl i en t sued Vining, her former lawy er, for malprac tice and Vining attempted to prove

a limit ations defe nse by deposing the client’s new counsel. See Ferrari , 744 So.2d at 481. Vining obtained a trial court order direc ting new counsel “to submit to a deposition

. . . for inquiry as to the advice g iven to plaintiffs re gar d i n g [Vini ng ’s] alleg ed malprac tice.” Id

. Citi ng Florida Rule of Professional Conduct 4-1.6, the court held that Vining was not entitled to depose new counsel to deter mine when the client first spoke to new counsel about the leg al malprac tice claim. Id

. at 481- 82; see S & S Invs. v. Payless , 10 So.3d 699, 703 (F la. 4th DCA 2009) (distinguishing nonprivileg ed communications from Fe rra ri’s privileg ed discussions with new counsel); see also In re Lentek Int’l , No. 6:03-bk-08035-K SJ , 2006 Ba nkr. L EXI S 2536, at * 9 (B ankr. M.D. Fla. Sept. 12, 2006) (citing

6Clarke v. American Co mm er ce N a t ’l Bank , 974 F.2d 127, 129 (9th Cir. 1992) and noting that “billing and time r ecor ds which also reve al litigation strate g y or the spec ific nature of the ser vices provided, such as entries descr ibing p ar ticular are as of the law rese arc hed by an attorney , do fall within the protec tion of the [attorney -client] privileg e”)

. Her e, as in Ferrari , AMS seeks to support

a leg al theory by using the deposition (as well as detailed billing rec ords) of a nonparty lawy er to deter mine when a

client first spoke to that lawy er a bout a ce rtain ty

pe of le g al ac tion. AMS contends that it seeks only external trapping s of the attorney -client rel a ti o n s h ip, relying on Thompson and Burt . I n Thompson , a subpoena duces tecum was direc ted to a nonparty attorney , seeking production of rec ords ref lecting “the date( s) and time(s) of meeting s, confe renc es and/or telephone calls with” hi s client during a specifie d time fra me. Thomp s o n , 2 0 1 0 U.S

. Dist. L EXI S 123948, at *6. Be cause none of the requ es ted information disclosed the substance of any attorney -client communications, the court ruled that it was not privileg ed and was discovera ble. See id. at *18-19. Unlike the order s at issue in Ferrari and this case , the disclosure soug ht only a g ener al class of information, reve aling only the fac t of the meeting

. I n Burt , a party was asked at her deposition when she obtained counsel, but she refused to answe r and asser ted the attorney -client privileg e. See Burt , 603 So.2d at 125. Rejecting her asser tion of the attorney -client privileg e, the court held that the question did not infring e upon the privileg e set forth i n Florida Statute section 90.502. Id

. The question at issue in Burt is distinguishable from AMS’s inquiry to McI nty re beca use t he former sought onl y the underly ing fac t of when the clie n t obtained counsel g ener ally , not as to any

particula r leg al protec tion or substantive leg al advice

. 5

M cInt y re additionally points out that the information AMS seeks may allow the jury to 5 draw incorre ct infere nces about Def endants’ desire and instructions to McI nty re to file bankruptc y . 7Her e, AMS does not mere ly seek the basic fac t of what date McI nty re had his initial consult at ion with GPSI g ener ally ; rathe r, AMS seeks unreda cted billing invoices and testimony

reve aling McI nty

re’ s first bankruptcy consultation with GPSI

. Be cause this inquiry delves into the 6 substance of communications betwee n McI nty re and GPSI on a specific topic, it is privileg ed from disclosure and the trial court’s order cannot stand on this ba sis. See Hagans v. Gatorland Kubota , LLC , 45 So.3d 73, 76 (F la. 1st DCA 2010) (“The attorney -client privileg e exis ts to protec t not only the g iving of profe ssional a dvice, but a lso the g iving of information to the lawy er to e nable him to rende r sound and infor

med advice .”) ( citing Upjohn Co. v. U.S. , 449 U.S. 383, 390 (1981)). We now consider whether the trial cour t’s order is suppor ted by AMS’s alterna

tive arg uments conce rning Texas Rule of Evidence 612 and “of fensive use ” of the privileg e.

Texas Rule of E vidence 612

McI nty re and AMS join issue as to whether his revie w of an invoice to GPSI during a break at his deposition constituted a waiver of the attorney -client privilege

. AMS contends that he used the invoice to ref re s h h i s re collection for purposes of testify ing when his deposition resumed, and as such, he waived any applicable attorney -client privileg e for the invoice. See Tex. R.

D ispe lling such infere nces would require disclosure of the content of communicatio n s b e tw e e n G PS I and McI nty

re. For instance, if AMS discovere d that on a ce rtain date GPSI had a disc ussion with McI nty re “about fili ng bankruptc y ,” Defenda nts might have t o waive the privileg e to clar i fy what the lawy er a dvised and whe ther he advised GPSI ag ainst filing ba nkruptcy at that time. McI nty re does not object to producing hi s reda cted bill ing statements and invoi ces or to 6 appea ring for a deposition to discuss when GPSI spoke with him g ener ally , reta ined him g ener ally , and who a ttended such me eting s. 8Evid. 612. Howeve r, beca use the parties ag ree d that Florida privileg e law applies, Florida Statute 7 section 90.502—the proce dural equivalent of Texas Rule of Evidence 503—g overns when a document p ro t ec t ed by attorney -client privileg e may be subject to disclosure

. Cf. In re Chevron Phillips Chem. Co. , No. 09-06-470 CV, 2 0 0 6 T ex. App. L EXI S 9186, at *2 (Tex. App.—B eaumont Oct. 24, 2006, orig

. proce eding ) (mem. op.) (noting Rule 503 not Rule 612, descr ibes circ umstances in which document protec ted by attorn ey -client privileg e may be subject to disclosure). Fur

ther, as McI nty

re notes, the privileg e belong s to GPSI ’s succe ssor GPSI L , which purcha sed substantially all of GPSI ’s assets as a g oing conce rn and assumed con t ro l of GPSI ’s opera tions, and McI nty

re may not waive the privileg e unilatera lly

. See United States v. Cable News Network, Inc ., 865 F.Supp. 1549, 1557 (S.D. Fla. 1994) (conc luding that attorney canno t wa i ve attorney -client privileg e without client’s consent); see also Fla. Stat. § 90.502(3)( d) (providing that
att o rn ey -client privileg e may be claimed by client’s “succ essor” ); NCL Corp. v. Lone Star Bldg. Ctrs., Inc ., 144 B.R. 170, 174 (S.D. F la. 1992) (“The rig ht to asser t the attorney

client privileg e is

an incident of control of the corpor ation and rema ins with the corpor ation as it underg oes merg ers, takeove rs, and name chang es.”)

. GPSI L has not g iven McI nty re consent to waive the attorney -client p ri v i l ege , and his actions alone did not do so. Acc ording ly , AMS’s arg ument that Texas Rul e o f Evidence 612 functioned to waive the attorney -client privileg e under Florida law is unpersua sive. 8

AMS’s brief in support of i ts motion to compel did not addre ss Texas Rule of Evide n ce 7 612. I t is unclear f

rom the re cord w hether

this ground w as ar g ued to the trial c ourt. Be cause we are persua ded that Rule 61 2 i s i napplicable on these g rounds, we need not 8 addre ss the additional arg uments that Rule 612 is inapplicable beca use McI nty

re did not revie w the invoice “while testify ing” and alterna tively , if R u l e 612 did apply , it would waive privileg e only 9“Of

fensi ve use” of attorney- client privilege

McI nty re and AMS further join issue as to whether M cInt y re is using the attorney -client privileg e as both a “sword and a shield,” making offe nsive use of the privile g e. Howeve r, “off

ensive use” of the attorney -client privileg e require s a showing that the party asser ting the privileg e is also making a claim based on the privileg ed matter or see king “ aff

irmative re lief.” See GAB Bus. Servs., Inc. v. Syndicate 627 , 809 F.2d 755, 762 (11th Cir. 1987 ) (“I t is the rule in Florida that a party who bases a claim on matters which would be privileg ed, the proof of which will

nece ssitate the introduction of privileg ed matter into evi d ence, and then attempts to raise the privileg e so as to thwa

rt discovery , may be deeme d to have wa ived that privileg e.”) ; Republic Ins. Co. v. Davis , 856 S.W .2d 158, 163 (Tex. 1993) (holding t hat waiver of pr ivilege by offe nsive use require s proof that party asser ting privile ge s ee k s aff

irmative relief

, that privileg ed information soug ht is not mere ly rele vant but potentially outcome deter minative of cause of action, and that disclosure of confide ntial communication is only means for ag g rieve d party to obtain that evidenc e). Her e, neither McI nty

re, GPSI , nor GPSI L is a part y to the underly ing suit, and none of them are making any claim ag ainst or seeking aff irmative relief from AMS. I n the absenc e of such evidenc e, AMS cannot establish its c laim of “off ensive use” of the privileg e. See D avis , 856 S.W .2d at 163 (noting that if any element of “off ensive use” is lacking , “the trial court must uphold the privileg e”)

. Ba sed on this rec ord, we conclude that issuan ce o f the order and clar ify ing letter compelling McI nty

re to pr oduce almost e ntirely unreda cted billing invoices to A MS a nd appea r at

a deposition to answe r questions about when GPSI first consulted with him about bankruptc y , when

for the sing le invoice that he revie wed dur ing a brea k in his deposition. See Tex. R. App. P. 47.1. 10GPSI en gage d him to pursue bankruptc y protec tion, and when he commence d work in pursuit of

GPSI ’s bankruptc y protec tion was an abuse of the district court’s d is c r e ti on for which McI nty re lacks an ade quate r emedy

by appea l.

CONCLUSION Having conclude d that issuance of the order , coupled with the clar ify ing letter, was

an abuse of the district cou rt ’s d i s cr et ion and that McI nty re lacks an adequate reme dy by appea l, McI nty re’ s petition for writ of mandamus is conditionally g rante d. See Tex. R. App. P. 52.8(c)

. The writ will issue only if the district court fails to vaca te or modify the underly

ing order in acc ordanc e with this opi nion.

__________________________________________ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Filed: Aug ust 31, 2012

11