NO. 03-17- 00870

- CV

IN THE THIRD COURT OF APPEALS AUSTIN , TEXAS

_________________________________________________________________ _ 

## IN RE LEVIEN

__________________________________________________________________

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

__________________________________________________________________ O riginal Proceeding from Cause No. D-1-GN- 17

- 001

- 590 53 rd District Court Travis County, Texas

__________________________________________________________________ SALLEE S. SMYTH ELLEN A. YARRELL Attorney at Law Ellen A. Yarrell, P.C. SBT# 18779400 SBT# 22138500 800 Jackson Street 2900 Weslayan, Suite 350 Richmond, Texas 77469 Houston, Texas 77027 (281) 238

- 6200 (713) 621

- 3332 (281) 238

- 6202 (Fax) (713) 621

- 3669 (Fax) smyth.sallee@gmail.com ellen@eayatty.com

Attorneys for Real Parties’ In Interest KENNETH LEVIEN, BARRY LEVIEN & PHILIP LEVIEN, Trustees on Behalf of the Trust Established under Article Seven of the Last Will and Testament of Arnold Levien

O RAL ARGUMENT REQUESTED, IN THE ALTERNATIVE ACCEPTED 03-17-00870-CV 21602520 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/4/2018 11:28 AM JEFFREY D. KYLE

CLERKi OBJECTION TO, ALTERNATIVELY REQUEST FOR , ORAL ARGUMENT

Real Parties’ in Interest , the Trustees, assert that oral argument in this matter

is not warranted and should be denied. However, i n the event this Court should

grant Relator s ’ request for oral argument, then Real Parties’ In Interest , the

Trustees, request the opportunity to argue in response.ii ABBREVIATIONS

Mandamus Record

....................................... ... ...... ... ...... MR
Supplemental Mandamus Record ....................................... Supp. MR

Relator s ’ Petition for Writ of Mandamus attaches documents which are referenced as Appendix Items 1 through 9. In addition, Relators have filed a mandamus Record including documents referenced in Tabs 1 through 12. While Relator’s mandamus Appendix encompasses all items included in the Record, their numbering is not consistent. To avoid confusion, the Trustees ’ response will refer only to the documents included in the mandamus Record, specifically to Tab s 1 through 12 and include reference to the page number where that item appears in the PDF Record document
, for example MR 12:562 refers to the Record, Tab 12 at PDF document page 562.

Additional documents included in a Supplemental Mandamus Record will be referenced as MR 13 through MR 22, reflecting the tab numbers assigned to each supplemental document included

. Because several parties bear the same surname and/or exist in similar capacities, f or the convenience of the court and ease of understanding the following references will be used:

PROPER NAME POSSIBLE REFERENCES

TIM WHITTEN Relator; Whitten

SCOTT RHODES Relator; Rhodes

HARLAN LEVIEN Defendants ; Harlan or and STEPHEN LEVIEN Stephen

PARVIN JOHNSON, JR Defendants; Johnson or Ives

KENNETH LEVIEN, Real Parties in Interest , the BARRY LEVIEN and Trustees; PHILIP LEVIENiii SUPPLEMENT TO IDENTITY OF PARTIES & COUNSEL

Real Parties’ in Interest , the Trustees, identify the following additional counsel of record on their behalf in this original proceeding:

Sa llee S. Smyth Attorney at Law SBT# 18779400 800 Jackson Street Richmond, Texas 77469 (713) 238

- 6200 (713) 238

- 6202 (Fax) smyth.sallee@gmail.comiv TABLE OF CONTENTS

PAGE

OBJECTION TO, ALTERNATIVELY R EQUEST FOR, ORAL ARGUMENT ............

..................... ................... i

ABBREVIATIONS .......................................................... ii

SUPPLEMENT TO IDENTIT Y OF PARTIES & COUNSEL ........ iii

TABLE OF CONTENTS .................................................... iv

INDEX OF AUTHORITIES ................................................ vi

THE TRUSTEES’S STATEMENT OF THE CASE .........

............ ix

RESPONSE TO ISSUE PRESENTED .................................

.. x

THE TRUSTEES ’ STATEMENT OF FACTS

........................ 1

SUMMARY OF THE TRUSTEES’ ARGUMENTS

..................... 5

STANDARD OF REVIEW ..............................................

. 7

RESPONSE TO ISSUE ONE (R estated )
The trial court properly denied Relators’ application and motion for protection which sought to excuse their required appearance as
non

- party witnesses at trial pursuant to trial subpoenas properly issued an d served

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 8

ARGUMENT AND AUTHORITIES IN SUPPORT OF RESPONSE TO ISSUE ONE

A. The Order challenged on mandamus does not compel disclosure of any specific testimony, privileged or otherwise ............................................................... 8v PAGE

B. Existing trial court rulings already protecting the disclosure of privileged information from Whitten and Rhodes render mandamus moot .............................. 13

C. The extraordinary remedy of mandamus under the circumstances presented is clearly unfounded .................... 16

D. Mandamus relief will severely prejudice the Trustees right to prosecute their claims and will foreclose a credibility determination by the jury ............................................ 17

1. The jury should be allowed to judge the witnesses’ credibility ...................................................... 17

2. Eviden tiary rulings and the withdrawal of objections subsequent to the Relators depositions leave questions unanswered .................................................... 18

3. Discovery occurring after the Relators depositions ge nerate new areas of examination ......................... 18

4. By taking Rela tors’ depositions, the Trustees did not waive their right to subpoena the Relators as witnesses for trial ......................................................... 19

5. Relators’ suggestion that this Court’s prior mandamus decision excuses their testimony at trial is misplaced ..... 20

6. In sum mary, mandamus is not warranted .................. 22

CONC LUSION AND PRAYER .......................................

...... 22

CERTIFICATE OF COMPETENT EVIDENCE .....................

..... 23

CERTIF ICATE OF SERVICE ..........................................

..... 24

CERTIFICATE OF COMPLIANCE ....................................

... .. 25vi INDEX OF AUTHORITIES

PAGE TEXAS RULES

Tex. R. Civ. P. 176 .1

................................................... . 5, 10

Tex. R. Civ. P. 176. 2

................................................... .. 5, 10

Tex. R. Civ. P. 176.6(e)

................................................ .. ix, 2, 10

Tex. R. Civ. P. 192.5

................................................... .. 6, 10

Tex. R. Civ. P. 192.5(b)(2)

............................................. 10

Tex. R. Civ. P. 192.6(b)

................................................. 10

Tex. R. Civ. P. 192.6(b)(1

- 5)

........................................... 11

Tex. R. Civ. P. 206.6(b)

................................................. 17

Tex. R. Evid. 503

......................................................... 6

TEXAS CASES

Borden, Inc. v. Valdez
, 773 S.W.2d 718 (Tex. App.

— Corpus Christ i 1989, no writ) ................................................................. 12

Camarena v. Tex. Emp't Comm'n
, 754 S.W.2d 149 (Tex. 1988)

....................................... 16

City of Garland v. Louton
, 691 S.W.2d 603 (Tex. 1985)

....................................... 16

City of Keller v. Wilson
, 168 S.W.3d 802 (Tex. 2005)

....................................... 17vii PAGE

Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) ........................................ 15

Duval County Ranch v. Alamo Lumber Co.
, 663 S.W.2d 627 (Tex. App.

– Amaril lo 1983, writ ref’d n.r.e.)

..................................................................... 12

Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.

-- Austin 2002, no pet.)

............... 18

Holcombe v. Fowler
, 118 Tex. 42, 9 S.W.2d 1028 (Tex. 1928)

......................... 15
In re Bexar County Criminal District Attorneys’ Office, 224 S.W.3d 182 (Tex. 2007) (orig. proceeding)

.................. 7, 11

In re Hays County Crim. Dist. Attorney’s Office & Texas Dept. of Family and Protective Servs., 2010 Tex. App. LEXIS 8088 (Tex. App.

– Austin October 1, 2010, orig. proceeding) .................................. 16

In re Kellogg Brown & Root, Inc
., 166 S.W.3d 732 (Tex. 2005)

........................................ 15

In re Levien, 2015 Tex. App. LEXIS 4391 (Tex. App.

– Austin April 30, 2015) (or ig. p roceeding) (mem. opinion) ............... 1, 20

In re Levien, 2016 Tex. App. LEXIS 9409 (Tex. App.

– Austin August 26, 2016) (orig. proceeding) (mem. opinion)

............. 1

Jim Walter Homes, Inc. v. Foster
, 593 S.W.2d 749 (Tex. App.

-- Eastland 1979, no writ)

.......... 12

Nat'l Union Fire Ins. Co. v. Valdez
, 863 S.W.2d 458 (Tex. 1993)

........................................... 20viii PAGE
Stoufflet v. Stoufflet
, 2009 Tex. App. LEXIS 1899 ( Tex. App.

– Austin Mar ch 20, 2009 , no pet. )

............................................. 15

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ........................................ 7, 17ix THE TRUST EE S ’ STATEMENT OF THE CASE

Nature of the Underlying Proceeding. The primary suit , pending in the 423 rd District Court of Bastrop County, is one brought by the Trustees against the Defendants, two brothers who are former beneficiaries of a Trust and their adult adoptees, alleging various causes of action sounding in fraud and civil conspiracy

. These claims primarily challenge the validity and/or effect of two separate adult adoption orders and seek to hold the Defendants liable for damages incurred by the Trust due to the ir conduct. Relators in this mand amus, Whitten and Rhodes, represented the Brothers in the adult adoption proceedings and are non

- party witnesses in the fraud litigation.

Respondent. Respondent is the Honorable David Phillips, Visiting Judge in the 5 3 rd District Court of Travis County, Texas where Relators’ motion for protection the subject of this mandamus was heard in accordance with Tex. R. Civ. P. 176.6(e)

.

Respondent’s actions. Respondent denied Relators’ application and motion for protection which sought to excuse their appear ance as witnesses at trial pursuant to properly served trial subpoenas issued by the Trustees. More specifically, Relators

c hallenge the trial court’s December 19, 201 7 Order Denying Scott Rhodes’ and Tim Whitten’s Application and Motion for Protection, which order generally directs them “ to attend and give testimony at the trial relating to the case entitled "Kenneth Levien, Barry Levien and Philip Levien, Trustees on Be half of the Trust Established under Article Seven of the Last Will and Testament of Arnold Levien, Plaintiffs v. Harlan Levien and Stephen Levien, Defendants" and filed under Cause No. 423

- 2681 pending in the 423rd Judicial District Court of Bastrop County
, Texas, and remain at that place from day to day until discharged by the Court or Ellen A. Yarrell. ” (MR 12:562)
Relators contend that the December 19, 2017 order compels Relators disclosure of privileged information making it subject to mandamus relief

. The Trustees disagree.x RESPONSE TO ISSUE PRESENTED

RESPONSE TO ISSUE ONE: The trial court properly denied Relators’ application and motion for protection which sought to excuse their required appearance as non

- party witnesses at trial pursuant to trial subpoenas properly issued and served.1 THE TRUSTEES’ STATEMENT OF FACTS

Based on matters considered in two prior mandamus proceeding s 1 , this
Court is already familiar with a majority of the background facts and allegations
surrounding the Trustees complaints against the Defendants in the underlying
Bastrop County litigation . Those facts need not be detailed or repeated here to
understand and analyze the issue presented for review.
Simply enough, two adult adoption proceedings stand at the center of the

Trustees ’ claims against the Defendants in the Bastrop County litigation pending

under Cause No. 423

- 2681 and styled Kenneth Levien, Barry Levien and Philip

Levien , Trustees on Behalf of the Trust Established under Article Seven of the Last

Will and Testament of Arnold Levien, Plaintiffs v. Harlan Levien and Stephen

Levien, Defendants

. Relators, Scott Rhodes and Tim Whitten
, assisted in the representation of

Defen dants, Harlan Levien and Stephen Levien, in th e 2012 adoption proceedings
and as a result they have been identified by all parties during discovery and in
required pre

- trial filings as non

- party trial witnesses in the Bastrop County suit

which is set to be gin trial before a jury on January 29, 2018. ( Supp. MR 12 ; Supp.

MR 14)

1 In re Levien, 2015 Tex. App. LEXIS 4391 (Tex. App.

– Austin Apr il 30, 2015) (orig. proceeding) (mem. opinion); In re Levien, 2016 Tex. App. LEXIS 9409 (Tex. App.

– Austin August 26, 2016) (orig. proceeding) (mem. opinion)2 In December 2016, d uring the discovery phase of the Bastrop County suit,

Rhodes and Whitten were both deposed and subpoenaed to produce documents.

( MR 3:218, 221; MR 4:334, 337 ) Al l objections and claims of privilege asserted
during those depositions as well as those directed to the related subpoenas duces

tecum have now been resolved , either by the parties Rule 11 Agreement

( MR:7:466 ) or rulings from the 53 rd District Court of Travis County where
Relators sought relief pursuant to Tex. R. Civ. P. 176.6(e) . ( MR 9:502 ; Supp. MR

15)

On June 14, 2017, Rhodes and Whitten were each served in Travis County
with trial subpoena s issued by the Trustees in contemplation of a jury trial

scheduled to commence in the Bastrop County litigation on October 16, 2017.

( Supp. MR 16; Supp. MR 17 ) On that same date, under Cause No. D

- 1

- GN

- 17

- 001590 in the 53rd Judicial District Court of Travis County, Texas, Rhodes and
Whitten filed Applications and Motions for Protection from the trial subpoenas.

( Supp. MR 18; Supp. MR 19 ) On June 15, 2017 the Trustees filed separate
motions to compel disc overy relating to matters involving Whitten and Rhodes
depositions. (MR1:4; MR 2:116)
Whitten and Rhodes motions for protection from the trial subpoenas were

heard and denied by Judge Amy Clark Meachum, 201 st Civil District Court Judge,3 on September 14, 2017 . ( MR8:489

- 490 )

D ue to the events of Hurricane Harvey and its impact on the physical offices

of Trustees’ trial counsel
, the Trustees were forced to request a continuance of the

October 16, 2017 trial setting which was granted during a status conference before
the Bastrop County District Court on October 11, 2017. ( MR 8: 497
, 499) Trial

was reset to January 29, 2018. (MR 8: 497) As a result, the Trustees issued new
trial subpoenas to Rhodes and Whitten to appear and gi ve testimony on January 31,

2018 which subpoenas were duly served on Rhodes and Whitten in Travis County

on October 25, 2017. ( MR 8:491, 494 )
In light of Relators resistance to the Trustees prior trial subpoenas and the
Travis County District Co urt’s ru lings denying Relators request for protection, on
October 30, 2017 the Bastrop County District Court signed Orders obligating
Whitten and Rhodes to appear for trial on January 31, 2018 subject only to their
right to seek further protective orders. (MR 8: 4 97 , 4 99)
On November 16, 2017 a hearing was held in Travis County to obtain
rulings on the objections and privileges asserted during Whitten and Rhodes earlier
depositions. (Supp. MR 15 ) At that hearing, Judge Meachum considered and
ruled only on objecti ons and privileges raised during Rhodes deposition. (Supp.

MR 15 ) Judge Meachum ordered the parties to confer regarding the objections
filed on Whitten’s behalf and set a timetable to address these matters. (Supp. MR4 15 ) Judge Meachum ultimately ruled on those matters for which an agreement
could not be reached and signed an order regarding Whitten’s objections on

December 15, 2017. (MR 9:502)

On December 1, 2017
, in the existing Travis County cause, Relators again

filed an application for protective order regarding the trial subpoenas issued and
served in connection with the January 2018 trial setting. ( MR 6: 439) The Trustees
filed a written response opposing the motion for protective order. (MR 8: 470)
Defendants filed a written response taking the position that Relators presence as

live witnesses at trial was unnecessary. (MR 10: 511) Relators filed an additional
reply (MR 11: 515) and a hearing on Relators’ application was held on December

19, 201 7 before the Hon. David Phillips, Visiting Judge in the 53 rd District Court
of Travis County, Texas. (MR 12: 562) Judge Phillips denied the Relators’ motion
without prejudice to their right to seek further relief from the Bastrop County
District Court pre siding over the primary litigation . (MR 12: 562) Relators have
not sought protection in the Bastrop County District Court, but instead have filed
this mandamus proceeding challenging Judge Phillips December 19, 2017 Order

Denying Scott Rhodes and Tim Whit ten’s Application and Motion for Protection.

(MR 12:562)5 SUMMARY OF THE TRUSTEES’ ARGUMENTS
By this mandamus proceeding, Relators seek to avoid their appearance as
live witnesses at trial. The entire premise of Relators’ argument relies on the

asserti on that their expected trial examination will invade the attorney client and
work product privileges. As a result, they contend that Judge Phillips December

19, 2017 Order compelling their appearance at trial equates to an order forcing

disclosure of privileged and protected information justifying mandamus relief.

First and foremost, the challenged Order does not speak to the scope of
Relators’ testimony at trial but merely directs them to appear and give testimony in

the Bastrop County proceedings on January 31, 2018. (MR 12: 562) The
subpoenas at issue are purely trial subpoenas which comply with the form required

under Tex. R. Civ. P. 176.1 and Tex. R. Civ. P. 176.2. (MR 8:491, 494) N othing in

those rules require the Trustees to identify the natu re or scope of the witnesses
expected examination and as such it was impossible for the trial court to “pre

judge” the admissibility of such testimony based solely on the Relators
speculations.

E nforceable trial court rulings and agreements between the parties which
address all of the objections and privileges asserted during Whitten and Rhodes
prior depositions already exist to protect against disclosure of the attorney client
and work product pr ivileged information which Relators detail as a concern within6 their mandamus petition
, rendering this mandamus proceeding entirely moot on

those issues before the petition was even filed

. To the extent that Relators face new and/or previously unchartered areas of
questioning at trial which somehow implicate s the provisions of Tex. R. Civ. P.

192.5 (regarding protection of attorney work product) or Tex. R. Evid. 503
(regarding protection of attorney client privileged information) , Judge Duggan,
presiding o ver th e Bastrop County proceedings, is more than capable of addressing
any and all objections and/or claims of privilege as they arise during trial , making
this mandamus proceeding wholly unfounded as to those speculative matters.
Finally, there are numero us reasons which compel the Relators live
testimony at trial , the most significant being to provide the jury an opportunity to
judge their credibility and to afford the Trustees an opportunity to procure answers
to the many questions which remain unanswere d after orders overruling and/or
agreements withdrawing objections and privileges can now be considered. A ny
potential benefits claimed by Relators in this mandamus proceeding do not
outweigh the prejudice which will be caused by forestalling the Trustees ’ right to
fully and further examine Whitten and R hodes as witnesses before a jury.7 STANDARD OF REVIEW
A writ of mandamus will issue only to correct trial court actions when there
has been a clear abuse of discretion and when the relator has no adequate remedy
on appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

A trial court abuses its discreti on when it acts in an unreasonable or arbitrary
manner without reference to guiding rules and principles. Id. To obtain

mandamus relief, Relators must establish that the trial court could reasonably have
reached only one conclusion. Id. at 840.

In thi s case, the trial court has properly exercised its discretion denying
protection from a trial subpoena and directing Relators to attend and give
testimony at trial , nothing more and nothing less . (MR 12: 562)
Although Relators do not specify a standard of review within their
mandamus petition, they assert that th e trial court’s December 19, 2017 challenged

Order forces them to disclose privileged information justifying mandamus relief
, citing In re Bexar County Criminal Distric t Attorneys’ Office, 224 S.W.3d 182,
185 (Tex. 2007) (orig. proceeding). The Trustees contend that Relators have
grossly overstated the trial court’s ruling a s well as the applicability of the
Supreme Court’s decision in Bexar County, supra., arguing inst ead that under the
requisite standards for mandamus review, no abuse of discretion has o ccurred.8 R ESPONSE TO ISSUE ONE (Restated)
The trial court properly denied Relators’ application and motion for protection which sought to excuse their required appearance as non

party witnesses at trial pursuant to trial subpoenas properly issued and served.

ARGUMENTS AND AUTHORITIES IN SUPPORT OF RESPONSE TO ISSU E ONE

A. The Order challenged on mandamus does not compel disclosure of any specific testimony, privileged or otherwise.
Relators entire challenge upon mandamus is premised upon their claim that

the trial court’s December 19, 2017 Order compels Whitten and Rhodes, prior
attorneys for two of the Defendants in the Bastrop County litigation, to disclose
privileged information about that representation

. Clearly th is claim overstates the

terms of the Order they challenge which provides only th e following:

[ Whitten and Rhodes ] shall appear in the 423rd District Court of Bastrop County, Texas, located at the Bastrop County Courthouse, 804 Pecan Street, Bastrop, Texas 78602 at 9:00 a.m. on January 31, 2018 to attend and give testimony at the tri al relating to the case entitled “ Kenneth Levien, Barry Levien and Philip Levien, Trustees on Behalf of the Trust Established under Article Seven of the Last Will and Testament of Arnold Levien, Plaintiffs v. Harlan Levien and Stephen Levien, Defendants" a nd filed under Cause No. 423

- 2681 pending in the 423rd Judicial District Court of Bastrop County, Texas, and remain at that place from day to day until discharged by the Court or Ellen A. Yarrell.

(MR 12:562)
Relators mandamus challenge of th is simple directive for their appearance at
trial relies solely on their subjective belief that the only testimony they can9 possibly provide will be testimony subject to protection under either the attorney
client privilege or the attorney work product doctrine. Th e mandamus record
establishes that this is simply not the case

.
The Trustees note that t here were a variety of questions and topics reveal ed
during the Relators prior deposition s to which no objection s and/or privilege s w ere

ever asserted , including time frames of representation, when or if they met with
any of the Defendants, specific client identification and questions regarding their
billing . (MR 1 : 21, 29

- 31, 38

- 39 , 57, 76, 81, 92 and 96 ; MR 2 : 147, 157, 171,

172) All of t hese areas of examination live at trial are clearly permitted.
Further, regarding those deposition questions to which objections and/or
privileges were raised, subsequent trial court orders which over rul e s ome of these
claims as well as subsequent agreem ents between the parties withdrawing a
number of those prior objections leav e numerous questions wholly unanswered by

both Whitten and Rhodes, making it necessary for them to now answer those
questions live at trial . ( MR 1 : 37, 43, 45, 46, 62

- 63, 65, 72, 73, 75

- 76, 79, 82

- 83;

MR 2:141, 145, 147, 153, 154, 183, 191; MR 7:466; MR 9:502; Supp. MR 15 )
Finally, discovery taking place after Whitten and Rhodes were deposed
identified areas for examination of these two witnesses not yet covered in their
depositions and to the extent that all discovery deadlines have now passed under10 the applicable Docket Control Order, the Trustees may only seek answers to these
new questions through an examination of the witnesses at trial . ( Supp. MR 20 )

For th ese and other strategic reasons, t he Trustees issued general trial
subpoenas in the form required by Tex. R. Civ. P. 176.1 and 176.2 which were
properly served on Whitten and Rhodes. ( MR 8:491, 494 ) These subpoenas did
not specify the nature or scope of the witnesses expected examination, nor were
they required to. Even so, Whitten and Rhodes incorrectly presume that no
testimony they can offer at trial will be outside the protective bubble of the
attorney client or work product privilege . Based solely on this speculative
misconception, they sought protection under the auspices of Tex. R. Civ. P.

192.5(b)(2) which requires a showing by the requesting party of substantial need

for the information which cannot be ob tained without undue hardship befo re the
information may be compelled. (MR 6:439) Relators approach to t heir application
for protection, and hence their arguments on mandamus, are completely misplaced.

Tex. R. Civ. P. 176.6(e), authorizing an individual to seek protection from a
subpoena , implicates the provisions of Tex. R. Civ. P. 192.6(b) which gives the

trial court discretion to grant a protective order as necessary to protect against any
number of concerns including the invasion of personal rights and the protection
against disclosur e of attorney work product as detailed in Tex. R. Civ. P. 192.5.

(... “the court may make any order in the interest of justice” ...) (Emphasis added)11 If warranted, the trial court may order that (1) the requested inquiry not be sought
in whole or in part; (2 ) the extent or subject matter of the inquiry be limited; (3) the
inquiry not be undertaken at the time or place specified; (4) the inquiry be
undertaken upon terms or conditions as directed by the court; or (5) the results of
the inquiry be sealed or othe rwise protected. Tex. R. Civ. P. 192.6(b)(1

- 5)
(Emphasis added)
In this case, Relators attempted to transform a general, straightforward trial
subpoena into a specific, detailed request for protected and privileged information
by hypothesizing and speculating on the scope of the Trustees’ expected

examination of them at trial solely because Relators are attorneys who previously
represented two of the Defendants in proceedings relevant to the Bastrop County
litigation. In doing so, Relators narrowly focused their arguments supporting
protection in the trial court (and now on mandamus) on the Texas Supreme Court’s
holding in In re Bexar County Criminal District Attorney’s Office, supra.,
specifically addressing the standards to disco ver attorney work product . In turn,

this focus improperly attempted to shift the burden of securing a protective order

from the Relators to the Trustees. This narrow and limited attack on an otherwise
broad, general trial subpoena is misplaced and Whitte n and Rhodes deserve no
special treatment under the circumstances simply because they are lawyers to
which attorney client and work product privileges may apply.12 In the context of discovery, it has been said that such privileges were never
intended to foreclose any opportunity to depose or examine an attorney, but rather
only precludes those questions which may somehow invade upon the attorney

client confidences. Borden, Inc. v. Valdez , 773 S.W.2d 718, 720

- 21 (Tex. App.

— Corpus Christ i 1989, no writ). An attorney may not avoid examination in its
entirety merely because some matters may be privileged, but must object when
those inquiries are raised. Id. Other matters may exist which are not privileged

and which an attorney may be cal led upon to answer

... [f] or instance, the

attorney

- client privilege certainly does not encompass such nonconfidential

matters as the terms and conditions of an attorney's employment and the purpose

for which an attorney has been engaged. ” Id. citing Duval County Ranch v. Alamo

Lumber Co.
, 663 S.W.2d 627, 634 (Tex. App.

– Amarillo 1983, writ ref’d n.r.e.)

and Jim Walter Homes, Inc. v. Foster
, 593 S.W.2d 749, 752 (Tex.. App.

--

Eastland 1979, no writ)

. These principles should apply equally in the context of an
attorney’s examination, whether at a deposition or during testimony at trial.

In this case, the trial court clearly took a much broader view of the Relators
protecti ve order issue, that being whe ther or not the witnesses should appear live at
trial. Ultimately in the exercise of its discretion over that issue, the trial court

determined that the Trustees’ basis for having Whitten and Rhodes appear live at
trial outweighed any of the reasons offer ed to support a motion for protection,13 clearly trusting that Relators potential concerns , if any, could be ably addressed by
Judge Duggan while presidin g over their testimony at trial in the Bastrop County
litigation.
Because the trial court properly exercised its discretion and more
significantly, did not order the disclosure of privileged or protected information,

mandamus should be denied.

B. Existing trial court rulings already protecting the disclosure of privileged information from Whitten and Rhode s render mandamus moot.
The Trustees cannot fault Relators, as attorneys, for consistently seeking to
guard against the disclosure of privileged or protected information regarding their
former clients. However, in asserting their arguments which seek to completely
foreclose their live testimony at trial , Relators fully ignore that the majority of their
concerns as argued before the trial court and now raised in this mandamus have
already been addressed.
Whitten and Rhodes were previously deposed in Dece mber 2016.
(MR3:221; MR 4:337) Numerous objections and claims of both attorney and work
product privilege were asserted during their deposition testimony as well as to the
corresponding subpoenas duces tecum. (MR 2:198; MR 3:310) Many of these
objectio ns were withdrawn by a Rule 11 Agreement executed by the parties’
shortly before the December 2017 hearing. (MR 7:466) All other objections and
claims of privilege arising in connection with Relators’ depositions were ruled14 upon by the Travis County Dist rict Court

. (MR 9:502; Supp. MR 15 ) The effect
of these rulings narrowed the scope of Whitten and Rhodes testimony at trial on
those matters to which Relators’ and/or Defendants’ objections were sustained . As
argued below, these rulings also identified additional questions which would now
need to be answered where objections were either overruled or withdrawn.
Within their mandamus petition, Relators identify numerous deposition
questions posed by the Trustees counsel as ex amples of the examination they
predict will occur at trial . ( See Petition, pp. 3

- 4 ) The Trustees point out that as to
Whitten’s deposition, all objections raised to the specific questions identified were
sustained except one which was overruled and one question was withdrawn by the
plaintiffs. (MR 9:502; MR 7:466) As to Rhodes, all objections raised to the
questions listed were sustained except one objection which Relators withdrew by

agreement. (Supp. MR 15; MR 7:466) As such, the Trustees counsel is precluded

from making a majority of those specific inquiries again at trial and as a result, the
Relators’ argument is moot, having been resolved before it was even lodged.

It should a lso be noted that Judge Duggan’s privi lege rulings from

December 2014 remain in effect and e xist to further protect Whitten and Rhodes
from being compelled to testify regarding documents which have been fully
protected and remain unavailable to the Trustees for their use at trial, narrowing

th e scope of their examination even further. (MR 11:554)15 In effect, the prior trial court rulings, particularly those protecting disclosure
of matters protected by the attorney client and work product privileges, already
exist and operate to limit or narr ow the scope of Whitten and Rhodes testimony
before the jury, resolving the Relators’ concerns raised in the trial court and now

asserted on mandamus.
Citing, In re Kellogg Brown & Root, Inc ., 166 S.W.3d 732, 737 (Tex. 2005)
,
this Court has held that “[a] n issue becomes moot if a controversy ceases to exist
between the parties at any stage of the legal proceedings .”
Stoufflet v. Stoufflet
, 2009 Tex. App. LEXIS 1899, at *24 ( Tex. App.

– Austin

Mar ch 20, 2009 , no pet. )

. Further, the Texas Supreme Cour t has acknowledged

that mandamus should not issue "if for any reason it would be useless or
unavailing, " citing Holcombe v. Fowler , 118 Tex. 42, 9 S.W.2d 1028, 1028 (Tex.

1928). Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995). In this case,

the Trustees contend that the prior trial court rulings already address the identified
issues and concerns which Relators now bring before this Court and nothing

remains to be addressed on those matters.

To the extent that there may be new questions propounded at trial which
may trigger new concerns regarding protected information, Whitten and Rhodes
clearly maintain the right to object at that time and Judge Duggan presiding over
the Bastrop County litigation will be available to rule. Because it would have been16 impossible for Judge Phillips to pre

- judge these issues before the Relators
examination was underway, he did not abuse his discretion in denying the
Relators’ application for protection. In re Hays County Crim. Dist. Attorney’s

Office & Texas Dept

. of Family and Protective Servs., 2010 Tex. App. LEXIS

8088 *7

- 8 (Tex. App.

– Austin October 1, 2010, orig. proceeding).

C. The extraordinary remedy of mandamus under the circumstances presented is clearly unfounded.

If the Relators issu es are not moot, then the Trustees contend that mandamus
regarding the appearance of Whitten and Rhodes as witnesses at trial is

nevertheless unfounded under the circumstances.

Trial in the Bastrop County litigation will not commence until January 29,

2018 . ( Supp. MR 20 ) Whitten and Rhodes are not compelled to appear until

January 31, 2018 . (MR 8:4 91, 494) N ot a single question before the jury to be
impaneled has been asked and objections as authorized by the rules have not yet
been lodged or ruled upon . To the extent that any previously unaddressed

concerns regarding the admissibility of Relators’ testimony may arise during trial,

those can and will be addressed by the court at that time. It is fundamental that an
appellate court has no jurisdiction t o render an advisory opinion on a controversy

that is not yet ripe. City of Garland v. Louton
, 691 S.W.2d 603 (Tex. 1985);

Camarena v. Tex. Emp't Comm'n , 754 S.W.2d 149, 151 (Tex. 1988)

. Furthermore,

a ny perceived error affecting the jury’s verdict and ultimately the trial court’s17 judgment which may be claimed as to rulings made during Relators live testimony
before the jury may be asserted on appeal, proscribing the right to mandamus relief
altogether when an adequ ate remedy by appeal is afforded. Walker v. Packer, 827

S.W.2d at 839.

D. Mandamus relief will severely prejudice the Trustees right to prosecute their claims and will foreclose a credibility determination by the jury.
In addition to the foregoing argument s, there are any number of reasons why
Whitten and Rhodes should appear at trial to testify , establishing that the Order
compelling them to do so was not a clear abuse of discretion.

1. The jury should be allowed to judge the witnesses’ credibility.

The Bastr op County litigation is set to be tried before a jury and in those
circumstances the j urors will be the sole judges of the credibility of the witnesses
and the weight to give their testimony. City of Keller v. Wilson , 168 S.W.3d 802,

819 (Tex. 2005)

. Although a party may use deposition testimony in lieu of live testimony at

trial, Tex. R. Civ. P. 206.6(b) , this may not always be appropriate for strategic or
other reasons. Here, while Whitten and Rhodes were both deposed, those
depositions were only re corded by stenographic means and no video was taken.
(MR 3:221; MR 4:337) As such, reading their deposition testimony into evidence

would not afford the jury the opportunity to observe the witnesses demeanor or

consider the tone and inflection in their v oices, experiences which are recognized18 as vital to a trier of fact when determining credibility. Echols v. Olivarez, 85

S.W.3d 475, 477 (Tex. App.

-- Austin 2002, no pet.)

.
2. Evidentiary rulings and the withdrawal of objections subsequent to the Relators depositions leave questions unanswered.
Counsel for Whitten and Rhodes asserted numerous objections and
privileges during their deposition leaving many questions unanswered. (MR

3: 221 ; MR 4: 337 ) As already stated, s ubsequent trial court orders overrulin g some
of these objections now permit the Trustees to obtain those answers. (MR 9:502;

Supp. MR 15 ) Further, Relators actually withdrew some of their objections and/or
assertions of privilege to questions asked but not answered during their
depositions
, leaving those to now be answered as well . (MR 7:466) Pursuant to
the effective Docket Control Order, discovery is now closed making the Relators
appearance at trial to provide their responses to all of these matters necessary.
( Supp. MR 15 )

3. Discovery occurring after the Relators depositions generate new areas of examination.
Whitten and Rhodes were deposed in December 2016. (MR 3:221; MR
4:337) Thereafter, discovery in the Bastrop County litigation was ongoing
, including depositions of the Defendan ts themselves , which has identified
additional inquiries to be made of Whitten and Rhodes. For example, subsequent19 discovery reveal ed certain conflicting testimony between Whitten and Ives which
the Trustees are permitted to explore at trial.
Specifically
, Whitten expressly testified during his deposition that he did not
represent Defendant Kenneth Ives during the 2012 adult adoption proceedings.

(MR 1 : 96, lines 8

- 11 ) In contrast, Ives testified that he considered Whitten to be

his counsel . ( Supp. MR 21 :173, lines 17

- 25 ) Resolution of this conflicting

t estimony may bear on the application of the attorney client privilege as to
communications between or including these individuals and those may not be fully

revealed until trial.

4. By taking Relators’ depos itions, the Trustees did not waive their right to subpoena the Relators as witnesses for trial.

Clear l y, depositions are a discovery tool designed to elicit and secure sworn
testimony for possible use at trial but nothing in the rules forces a party to ch oose
between the use of a deposition or live testimony. P ropounding questions during a
deposition does not waive a party’s right to ask those same questions again at trial
if for strategic reasons counsel determines live testimony makes a more favorable
presentation . There may be significant differences between how a witness reacts to
a question during the more private setting of a deposition as opposed to what they

exhibit in a courtroom before a jury. Counsel may strategically choose to take a

basic, investigative deposition, while reserving questions on certain issues for
examination during trial.20 The Supreme Court has noted, the p roper presentation of a client's case

demands that an attorney be able to plan his or her strategy without undue and

needless interference. Nat'l Union Fire Ins. Co. v. Valdez
, 863 S.W.2d 458, 461

(Tex. 1993)

. Granting Relators motion for protection from general trial subpoenas

would needlessly interfere with the Tru stees presentation of their case and was not

warranted here.

In this case, there is absolutely no basis for interfering with the Trustees’
right to call Whitten and Rhodes as live witnesses at trial and examine them fully

within the parameters of the trial court ’ s existing rulings on protected information

and/or the applicable rules of evidence

.
5. Relators’ suggestion that this Court’s prior mandamus decision excuses their testimony at trial is misplaced.
Relators argue that this Court’s prior decision in In re Levien, 2015 Tex.
App. LEXIS 4391 (Tex. App.

– Austin April 30, 2015) (orig. proceeding),
somehow excuses their testimony at trial. Relators cite to the language in that
Opinion which suggested that the “only relevant considerations [related to an adu lt
adoption] seem to be whether the petitioner resides in this State, whether the
petition was filed in an appropriate district court of statutory county court, whether
the petitioner’s spouse joined the petition, whether the adult to be adopted

consented in writing, and whether the petition and the adult to be adopted were
present at the hearing.” Id. at *13. (See Petition, p. 12) Relators assert that any21 testimony they have to offer would be unrelated to these issues and/or that other

evidence, includi ng testimony from the Defendants themselves
, could supply all of

this information.
In the Bastrop County litigation, the Trustees have directly attacked the trial
court’s subject matter jurisdiction over Stephen’s 2012 adoption of Ives , asserting
that Step hen was not a Texas resident at the time of those proceedings and
therefore the adoption order is void . ( Supp. MR 22 ) This disputed is sue will be
resolved at trial by the jury.
As the attorneys responsible for preparation of the adult adoption pleadings
which represented Stephen’s Texas residency to the trial court in 2012 , Whitten
and Rhodes testimony regarding the extent of their knowledge and/or investigation
of the facts relevant to this issue is directly relevant to the jurisdiction issue as well

as to claims involving fraud upon the trial court in pursuit of the adult adoptions.

Th e Tr u stees did not fully explore this topic with Relators during their depositions

b ecause they plan ned to do so at trial and there is no reason why they should be

denied this opportunity. As such, this Court’s 2015 mandamus decision actually
encourages Whitten and Rhodes appearance as witnesses at trial in order to
promote a full examination of the relevant facts necessary to resolve the disputed
jurisdictional issue pres ented in this case.22 6. In summary, mandamus is not warranted.
All of foregoing arguments demonstrate that excusing Whitten and Rhodes
from testifying at trial would severely prejudice the Trustees ability to present all
relevant evidence for the jury’s consideration. Existing and enforceable pre

- trial
orders protect their concerns regarding disclosure of privileged and protected
information and Judge Duggan remains in place to address any further issues
which may arise at trial. Overall, Relators have not established how the benefits of

mandamus as addressing their concerns will outweigh the prejudice caused by
forestalling the Trustees’ right to examine them as witnesses during trial.

CON CLUSION AND PRAYER
Based on the arguments asserted herein, Real Parties’ In Interest,

KENNETH LEVIEN, BARRY LEVIEN & PHILLIP LEVIE N, Trustees
, request

this Court to deny mandamus relief. Real Parties’ in Interest request such other

relief to which they may show themselves entitled.23 Respectfully submitted,
/s/ Sallee S. Smyth /s/ Ellen A. Yarrell SALLEE S. SMYTH ELLEN A. YARRELL Attorney at Law Ellen A. Yarrell, P.C. SBT# 18779400 SBT# 22138500 800 Jackson Street 2900 Weslayan, Suite 350 Richmond, Texas 77469 Houston, Texas 77027 (281) 238

- 6200 (713) 621

- 3332 (281) 238

- 6202 (Fax) (713) 621

- 3669 (Fax) smyth.sallee@gmail.com ellen@eayatty.com
Attorneys for Real Parties’ In Interest Trustees on Behalf of the Trust Established under Article Seven th of the Last Will and Testament of Arnold Levien

CERTIFICATE OF COMPETENT EVIDENCE

Pursuant to Tex. R. App. P. Rule 52.3(j), I certify that I have reviewed this Response to P etition for Writ of Mandamus and concluded that every factual statement in the response is supported by competent evidence included in the mandamus record and any supplements thereto.

/s/ Sallee S. Smyth SALLEE S. SMYTH Attorney for Real Parties’ in Interest24 CERTIF ICATE OF SERVICE
I certify that a true copy of the above Response to Petition for Writ of Mandamus was served on the following counsel of record in accordance with the Texas Rules of Civil and Appellate Procedure on this the 4 th day of January, 2018 :

Kevin J. Terrazas VIA EMAIL at kterrazas@clevelandterrazas.com Attorney for Relators

John Kinchen VIA EMAIL at jkinchen@hakllp.com Attor ney for Real Parties in Interest, the Defendants
Luis A. Fabrega VIA EMAIL at lfabrega@fabregahood.com Attorney for Real Parties in Interest, the Defendants
Judge David Phillips, Respondent Travis County District Judges Office VIA EMAIL at Lorraine.elzia@traviscountytx.gov
Judge C hristopher D. Duggan 423 RD District Court 804 Pecan Street Bastrop, Texas 78602 VIA FEDERAL EXPRESS DELIVERY

/s/ Sallee S. Smyth SALLEE S. SMYTH25 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. Rule 9.4(i)(3) , I certify that there are 4,999 words within this document exclusive of those contained in the caption, table of contents, index of authorities, issues presented, statement of the case, signatures, certificate of competent evidence, proof of service, and certificate of compliance, as tabulated by the computer program used in conjunction with the preparation of this document.

/s/ Sallee S. Smyth SALLEE S. SMYTH