Petition for Writ of Mandamus Denied and Majority Memorandum and 

Concurring Opinions filed October 6, 2011.

In The

Fourteenth Court of Appeals

NO. 14-11-00408-CV

IN RE LINDA HERNANDEZ, JOSE HERNANDEZ, JAVIER VASQUEZ, 

CLAUDIA GIL, RAUL VASQUEZ AND VIRGINIA VASQUEZ, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

212th District Court

Galveston County, Texas

Trial Court No. 09CV0348

M A J O R I T Y M E M O R A N D U M O P I N I O N

On May 9, 2011, relators Linda Hernandez, Jose Hernandez, Javier Vasquez, 

Claudia Gil, Raul Vasquez and Virginia Vasquez filed a petition for writ of mandamus in 

this court. See Tex. Gov‘t Code Ann. §22.221; see also Tex. R. App. P. 52. In the 

petition, relator ask this court to compel the Honorable Susan Criss, presiding judge of 

the 212th District Court of Galveston County to (1) vacate the order denying relators‘ 

motion to compel, and (2) vacate the order denying relators‘ motion for court order 

allowing experts and parties to reveal case specific details and settlements. 
2

I

Relators Linda Hernandez, Jose Hernandez, Javier Vasquez, Claudia Gil, Raul 

Vasquez and Virginia Vasquez (hereinafter ―Clients‖) filed suit against real parties in 

interest Abraham, Watkins, Nichols, Sorrels & Friend, Randall Sorrels, and Bernardino 

Agosto, Jr. (hereinafter collectively ―Attorneys‖). The Clients served various discovery 

requests on the Attorneys, and the Attorneys asserted various objections to these 

discovery requests. The Clients filed a motion to compel the Attorneys to respond to 

fourteen requests for production and six interrogatories (hereinafter collectively 

―Discovery Requests‖). The Clients also filed a motion for a court order allowing experts 

and parties to reveal case-specific details and settlements (hereinafter ―Motion for Court 

Order‖). 

In connection with their suit, the Clients sought to discover1, inter alia, (a) all 

documentation showing the amount of funds Abraham Watkins received on behalf of 

―their clients‖ (Request for Production 17); (b) mediation memoranda, settlement 

negotiations, ―global settlement‖ documents, settlement communications and disposition 

of settlement funds, all pertaining not only to the Clients but also to other Abraham 

Watkins clients (Request for Production 18–21, 24, and 25); and (c) detailed information 

about settlements of the Attorneys‘ ―joint clients‖ (Interrogatories 14–19). The Attorneys

objected that all of the subject discovery was overly broad, vague, ambiguous; the 

Attorneys asserted that some of the requests were not reasonably calculated to lead to the 

discovery of admissible evidence and violated the attorney-client and attorney-work 

product privileges. Finally, the Attorneys asserted that their response to the discovery 

would violate a protective order entered on April 19, 2005 in the underlying BP litigation. 

 

1 Although relators sought extensive other discovery, only these matters remained in dispute at 

the time relators presented their motion to compel.
3

The Clients assert an exception to the attorney-client privilege in that Abraham 

Watkins‘ clients were represented jointly, and a global settlement was obtained on behalf 

of a larger group of clients without regard to each individual claim. See Tex. R. 

Evid.503. The Clients also assert the Attorneys waived the attorney-client privilege 

through the doctrines of offensive-use and disclosure to third parties. 

On April 1, 2008, the Attorneys filed a petition in intervention for a declaratory 

judgment seeking a declaration that the Clients‘ claims violate the protective order. The 

Clients subsequently filed a legal malpractice action against the Attorneys alleging 

wrongful settlement. The two cases were consolidated.

In the trial court the Clients argued the documents were not privileged because the 

information sought was from joint clients in the BP litigation, and they did not violate the 

earlier protective order. The Clients further argued that the settlement agreements did not 

prohibit discovery because those agreements are relevant to the current case. 

The trial court denied both of the Clients‘ motions. The trial court did not 

explicitly specify the objections upon which it based its denial of the Clients‘ motion to 

compel. The Clients have sought mandamus relief in this court, arguing that the trial 

court clearly abused its discretion by denying both of these motions.

II

Mandamus will issue to correct a discovery order if the order constitutes a clear 

abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline 

Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). The burden of establishing an 

abuse of discretion and an inadequate appellate remedy is on the party resisting 

discovery, and this burden is a heavy one. Canadian Helicopters, Ltd. v. Wittig, 876 

S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). Mandamus relief may be justified 

when: (1) the appellate court would not be able to cure the trial court‘s discovery error, 
4

such as when privileged information or trade secrets would be revealed or production of 

patently irrelevant or duplicative documents imposing a disproportionate burden on the 

producing party is ordered; (2) the party‘s ability to present a viable claim or defense is 

severely compromised or vitiated by the erroneous discovery ruling to the extent that it is 

effectively denied the ability to develop the merits of its case; or (3) the trial court‘s 

discovery order disallows discovery that cannot be made a part of the appellate record, 

thereby denying the reviewing court the ability to evaluate the effect of the trial court‘s 

error. Colonial Pipeline, 968 S.W.2d at 941, citing Walker v. Packer, 827 S.W.2d 833, 

843–44 (Tex. 1992).

With respect to resolution of factual issues or matters committed to the trial 

court‘s discretion, the reviewing court may not substitute its judgment for that of the trial 

court. Walker, 827 S.W.2d at 839. The relator‘s burden is to establish that the trial court 

could reasonably have reached only one decision. Id. at 840. A reviewing court cannot 

disturb the trial court‘s decision unless it is shown to be arbitrary and unreasonable. Id.

Review of a trial court‘s determination of the legal principles controlling its ruling 

is afforded less deference. Id. ―A trial court has no  ̳discretion‘ in determining what the 

law is or applying the law to the facts.‖ Id. We use this standard to determine whether 

the trial court correctly applied exceptions to the attorney-client privilege to the 

documents in question.

III

In their mandamus petition, the Clients extensively brief many of the discovery 

objections asserted by the Attorneys in response to the Discovery Requests. But, in their 

petition, the Clients neither challenge nor present argument with respect to one or more 

of the discovery objections asserted by the Attorneys as to each of the Discovery 

Requests. Even if this court were to conclude that the trial court abused its discretion by 
5

sustaining all of the objections briefed by the Clients in their mandamus petition, this 

court still could not grant the requested relief unless the trial court also abused its 

discretion in sustaining the other discovery objections. See In re Citizens Supporting 

Metro Solutions, Inc., No. 14-07-00190-CV, 2007 WL 4277850, at *4 (Tex. App.—

Houston [14th Dist.] Oct. 18, 2007, orig. proceeding) (mem. op.). The Clients‘ 

mandamus petition does not contain any argument, analysis, record citations or legal 

authority in support of the proposition that the trial court clearly abused its discretion in 

sustaining at least one of the objections asserted by the Attorneys as to each of the 

Discovery Requests. See Tex. R. App. P. 52.3 (h) (stating that ―[t]he petition must 

contain a clear and concise argument for the contentions made, with appropriate citations 

to authorities and to the appendix or record‖); In re Citizens Supporting Metro Solutions, 

Inc., 2007 WL 4277850, at *4. Because the Clients have not shown that the trial court 

clearly abused its discretion by sustaining all of the Attorneys‘ objections as to any of the 

Discovery Requests, the Clients have not satisfied their burden of establishing their 

entitlement to mandamus relief regarding the trial court‘s denial of their Motion to 

Compel. See In re Citizens Supporting Metro Solutions, Inc., 2007 WL 4277850, at *4. 

IV

Moreover, the Clients‘ discovery requests are overly broad and not reasonably 

calculated to lead to the discovery of admissible evidence. 

To show relevance, the Clients rely heavily on this court‘s opinion in Elizondo v. 

Krist, 338 S.W.3d 17 (Tex. App.—Houston [14th Dist.] 2010, pet. filed). In a case with 

very similar facts, Elizondo and his wife sued their lawyers alleging they did not receive 

an adequate settlement for their injuries resulting in the 2005 BP explosion. The trial 

court granted a no-evidence summary judgment in favor of Elizondos‘ lawyers and the 

Elizondos appealed. This court affirmed the summary judgment finding that Elizondo 

had not presented evidence of damages. In reaching that conclusion, this court stated, 
6

Elizondo ―could not identify anyone who obtained a larger settlement for similar claims, 

the amount of any other settlement received, or whether the settlements were for injuries 

like those he suffered.‖ Id. at 23. The majority opinion noted that Elizondo sought to 

obtain discovery regarding ―various documents relating to the BP settlements and, in 

response, the Lawyers asserted various objections.‖ Id. at 22, n. 2. Unlike the instant 

case, however, the Elizondo opinion did not address the discovery dispute because it was 

not raised on appeal. Id. 

In this mandamus, the Clients assert that they are entitled to discover documents 

relating to the BP settlements of other clients because, under this court‘s analysis in 

Elizondo, they cannot prove their damages unless they can show evidence of other clients 

receiving larger settlements for similar claims. The Attorneys respond that the other 

clients‘ settlement documents are privileged, and that the Clients have failed to show that 

the Attorneys represented similarly situated clients.

The Attorneys correctly point out that the Clients seek information about all of the 

Attorneys‘ BP clients. Moreover, the Clients concede that their claim for improper 

settlement depends upon a showing that ―the Lawyers settled claims similar to those of 

the Clients for a higher amount.‖ The Clients‘ discovery is not tailored to discover 

information about similarly situated clients — rather the Clients‘ discovery requests are 

directed to ―joint clients.‖

2

 

2We note that the Attorneys presented uncontroverted, admissible evidence that there was no 

aggregate settlement and all negotiations were individual based on each individual‘s circumstances; that 

the clients represented by Abraham Watkins were not ―joint clients‖ in the litigation against BP; and that 

there was no sharing of clients‘ medical records, commingling of lost wage information, or global 

settlement. Thus, the trial court did not abuse its discretion in finding the joint client exception does not 

apply. See Scrivner v. Hobson, 854 S.W.2d 148, 151 (Tex. App.—Houston [1st Dist.] 1993, no writ).
7

The Texas Supreme Court has ―repeatedly emphasized that discovery may not be 

used as a fishing expedition.‖ In re American Optical Corp., 988 S.W.2d 71, 73 (Tex. 

1998). A trial court enjoys broad discretion in fashioning the breadth of discovery. See 

Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). Where, as here, the 

request could have been more narrowly tailored to avoid including tenuous information 

and still obtain the necessary, pertinent information, we cannot say the trial court abused

its discretion in determining that the requests are overbroad, if such was the basis for the 

decision. In re American Optical Corp., 988 S.W.2d 71, 73 (Tex. 1998).

V

Though the Clients include the Motion for Court Order within the defined term 

―Requested Relief‖ that the Clients use throughout their mandamus petition, the Clients 

do not present any argument, analysis, or legal authority in support of the proposition that 

the trial court clearly abused its discretion by denying their Motion for Court Order. See 

Tex. R. App. P. 52.3 (h); In re Citizens Supporting Metro Solutions, Inc., 2007 WL 

4277850, at *4. The Clients have not satisfied their burden of establishing their 

entitlement to mandamus relief with respect to the trial court‘s denial of their Motion for 

Court Order. See id.

The Clients also argue that by denying the motion to compel and Motion for Court 

Order, the trial court violated the Clients‘ rights under (1) the Open Courts provision of 

the Texas Constitution, (2) the Due Course of Law provision of the Texas Constitution, 

and (3) the Due Process Clause of the Fourteenth Amendment to the United States 

Constitution. See Tex. Const. art. I, §§ 13,19; U.S. Const. amend. XIV, § 1. The Clients 

have not cited any case in which a court held that a trial court‘s discovery ruling violated 

a party‘s constitutional rights. The Clients‘ constitutional arguments lack merit.
8

VI

With their response to the petition for writ of mandamus, the Attorneys filed a 

―Motion to Seal Certain Documents to be Submitted as Part of the Mandamus Record.‖ 

As the court has determined that the Clients are not entitled to mandamus relief, the 

Attorneys‘ motion to file a sealed record is denied. 

For the reasons stated above, we deny mandamus relief.

/s/ Sharon McCally

Justice

Panel consists of Justices Frost, Jamison, and McCally. (Frost, J., Concurring.)