## IN THE SUPREME COURT O F TEX AS

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. 15-0591

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### I N R E 

### N A T IO N A L 

### L L O Y D S 

### I N S U R A N C E 

### C O M P A N Y 

### , W A R D L A W 

### C L A IM S 

### S E R V IC E 

### , I N C


### . A N D 

### I D E A L 

### A D J U S T IN G 

### , I N C


### . , R E L A T O R S

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O N P E T I T I O N F O R W R I T O F M A N D A M U S

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J U S T I C E J O H N S O N , joined by J U S T I C E L E H R M A N N and J U S T I C E B O Y D , dissenting.

Relators (collec tively , National L loy ds or the company ) desig nated Scot Doy en, an attorney
repr esenting them in these lawsuits, to testify reg arding att o rn ey ’s fees the homeowner –plaintiffs seek to rec over. The question posed by the parties and ruled on by the trial court is whe t h er information about his fee s, expenses, and billing information, as well as that of other att orney s repr esenting National L loy ds in th e s u i t s i s discovera ble. National L loy ds maintained in the trial
court a nd now maintains in this Court that the information is both irrele vant and pr ivilege d, either

as attorney -client communications or attorney work product. I t has done so d espite not making a

rec ord by producing any documents for examination. The trial court disag ree d as to rele vance , but wisely authorized—and direc ted—National L loy ds to respond to the discovery reque sts afte r reda cting privileg ed informa tion from any documents produc ed. This Court, addre ssing an issue not raised by the parties, say s the homeowner s used improper discovery methods by using interrog atories and reque sts for production of documents. I t follows thatup by say ing that the methods would not have mat t ere d any way beca use the information is not rele vant. The first rea son the information is irr eleva nt, say s the Court, is because National L loy ds has disavowed any intent to use its attorney ’s fee s as a measure for challeng ing the plaintiffs’ claims. The second rea son is beca use whateve r rele vance the information might have is slight when
compar ed to competing conce rns such as undue prejudice , co n fu sion of the issues, and abusive discovery prac tices. Thus, the Court ag ree s with National L loy ds and deter mines that the trial court abused its discre tion by

direc ting e ven the limited discovery it ordere d.
I disag ree and would deny relief

. I. Stand ard of Review Gene rally , parties may obtain discovery “re g arding any matter that is not privileg ed and is rele vant to the subject matter of the pending action, whether it rela tes to the claim or defe nse of the party seeking discovery or the claim or defe nse of any other party .” T E X
. R. C I V
. P. 192.3(a) ; Ford Motor Co. v. Castil lo , 279 S.W .3d 656, 664 (Tex. 2009). Trial courts are aff orded broad discretion in determ i n i n g an d co n trolling the scope of discovery

. See In re Am. Optical Corp. , 988 S.W .2d 711, 713 (Tex. 1998). Trial court ruling s reg arding discovery are revie wed for abuse of discretion. In re Nat’l Lloyds Ins. Co. , 449 S.W .3d 4 8 6, 488 (Tex. 2014). There is no presumption that documents are privileg ed, and the party resisting the discovery bear s the burden of pleading an d proving an applicable privil eg e. In re E.I. DuPont de N emours & Co. , 136 S.W .3d 218, 223, 225 (Tex. 2004). Denial of d i scover y is proper only if there is “no possible rele vant, discovera ble” materia l to support, or lead to evidenc e that would support, claim s o r d ef en s es of a party

. Ford Motor Co. , 279 S.W .3d at 664.

2II. Discussion A. Me thods of

Discover y National L loy ds desig nated Doy en, whose firm is one of those repr esenting it in the pending

case s, as an expert witness on attorney ’s fee s. After Doy en testified in a simil ar- ty pe case and g ave opinion testimony as to the plaintiff’s attorney ’s fee reque st, based in part on his persona l knowledg e from repr esenting a defe ndant in the case , the homeowner s soug ht permission to s e r v e in te r r o g a to r ies and reque sts for production reg arding , as to eac h case , the time Doy en and his firm spent on the case and the firm’s fee s and expenses billed to and paid by National L loy ds. They soug ht t h e s am e information reg arding all the lawy ers repr esenting National L loy ds in the case s. Nationa l L l o y ds objected that the reque sted discovery was “over ly broad and seeks information that is both irrele vant and protected by the attorney -client and work-produc t privileg es.” Ante at ___. A s pecia l master hear d the dispute. National L loy ds neither offe red t es t i m ony nor produce d any documents for examination by the specia l master or trial court. The specia l master rec ommended, and the trial court order ed, that National L loy ds respond to the discovery reque sts as modified by

the court, except it specifie d in its order that “spec ific rec ords may be reda cted for content protec ted by an appropr iate privileg e.” National L loy ds did not asser t in the trial court that the home owner s improperly reque sted discovery by using in t err og atories and reque sts for production. I t did not asser t in the court of
appea ls that the trial court abused its discretion by authorizing discovery by means of interrog atories and reque sts for production instead of reque sts for disclosure, depositions, and repor ts as permitted by Rule 195. See T E X
. R. C I V
. P. 195 (entitled “Discove ry Reg arding Testify ing Ex pert Wit nesses” ).

3Nor ha s it made that arg ument here . The issue of whether the homeowne rs used prope r discover y methods when National L loy ds did not make that challeng e is not an issue the trial court had a duty
to raise and rule on sua sponte. Compare, e.g. , Rusk State Hosp. v. Black , 392 S.W .3d 88, 103 (Tex. 2012) (“Subjec t matter jurisdiction cannot be waived or confe rre d by ag ree ment, can be raised at any time, and must be considere d by a court sua sponte.”). We do not have a duty to sua sponte raise the issue, either. Id. To the contra ry , under this re co rd we should do as the trial court did and limit ourselves to ruling on the issues prese nted by the par ties.
I n my view, the trial court did not abuse its discretion by addre ssing only the issues prese nted by the parties and not g rant i n g re l i ef o n g rounds National L loy ds did not urg e. See McKinney v. Nat’l Union Fire Ins. Co. , 772 S.W .2d 72, 75 (Tex. 1989) (“[T]he objecting party must assume the burden of establishing its privileg e, immunit y or other objection to the discov e r y r e quest.” (empha sis added) ). Moreove r, interrog atories and reque sts for production o f d o cu ments are appropr iate for discovering information rela ted to Doy en as a person with k n o wl edg e of rele vant fac ts reg arding attorney ’s fe es in ca ses in which he has participa ted in tr ial prepa ration, as is discussed more f ully below. National L loy ds should not g et t o conver t a wi t n ess from one with knowledg e of rele vant fac ts into solely an expert witness simply by desig nating the witness as an expert. And the trial court would not have abused its discretion by considering Doy en as a fac t witness as well as an expert for discovery purposes—e ven if National L loy ds had arg ued he was not a fac t witness, which it has not. I n light of the fore g oing, I disag ree with the Court’s conclusio n that “[b] eca use the homeowner s chose not to use Rule 195’s permissible discovery methods to reque st insurer’ s expert

4information, the trial court err ed insofar as it relied on Rule 192.3(e) in deter mining the scop e of discovery .” See ante at ___. B. Relevance Going bey ond th e issue of methods of discovery , the Court conclude s that the trial court abused its discretion by order ing National L l o y d s t o respond to the following discovery reque sts beca use they did not seek re levant informa tion:
I nterrog atories: (1) State the hourly rate of any and all attorney s who have provided leg al service s to this Defenda

nt in this case ; (2) State the total amount billed by eac h law firm providing leg al service s to this Defenda

nt in this case up to and including the time of trial; and (3) State the total amount of reimbursa ble expenses incurre d by any law firm providing leg al service s to this Def endant in this case up to and including the time of trial. Requests for Produc tion: (1) Produce all billing invoices rec eived by Def endant and/or any of the firms the named attorney s are aff iliated with o r em p loy ed by , in connec tion with this case ; (2) Produce all pay

ment l o gs , l edg ers, or pay ment summaries showing all pay ments paid to Def

endants’ att o rn ey s and/or any of the firms that the named attorney s are aff

iliated with or employ ed by , in connec tion with this case ;

. . . (4) Please produce all documents that show the flat rate , if any , being paid to Def ense Counsel and/or any of the firm s t h at the named attorney s are aff iliated with or employ ed by , in connec tion with their service s on this case ; and (5) Please p ro duce all documents rela ted to audits of the billing and/or invoices of Def

ense Counsel and/or any of the firms that the named attorney s are aff iliated with or employ ed by , which wer e perf ormed o n b eh alf of Def endant in re g ards to the a ttorney service s rec eived by

Def endant.

5(empha sis added ). T he rec ord clar ifies that Request for Production number five is limit ed to

documents in the par

ticular c ase in whic h discovery is sought. The amount of rea sonable and nece ssary attorney s’ fee s to which the plaintiffs are entitled, if any , will be answe red by the fac tfinder—in these case s, presumably a jury , as jury demands have been made. Transcontinental Ins. Co. v. Crump , 330 S.W .3d 211, 230 (Tex. 2010) (“I n g ener al, the

rea sonablene ss of statutory att o rn ey ’s fe es is a jury question.” (quoting City of Garland v. Dall. Morning News , 22 S.W .3d 351, 367 (Tex. 2000)))

. The discovery was soug ht only afte r Doy en had both been desig nated to testify in these case s and had testified in another case i n o p p o s i t i o n to a plaintiff’s attorney ’s fee request. And t here can b e n o d oubt that if Doy en testi fies, his testimony will be in opposition to the fee s reque sted by the homeowner s: trial lawy ers do not call witnesses to testify in support

of the opposing party ’s position. During the discovery hear ing the homeowner s’ attorney s explained that Doy en’s testimony in the prior, simil ar- ty

pe case prompted the di scover y reque sts here

. I n t h at ca s e he g ave opinion testimony based in part on persona l knowledg e from his own participa tion i n the case . The homeowner s’ desire for information is understanda ble, g iven that when Doy en was cross-e x amined in the ear lier case about the amount of time and fee s he and his firm billed for handling the case , he could not rec all details of those matters. Given that previous experience , the homeowner s’ lawy ers

rea cted rationally : they soug ht specific information and rec ords with which to arm themselves to test Doy en’s testim ony and o p i n ions should his rec ollection ag ain falter, or his memory as t o the firm b i l l i n g s be incomplete. Moreove r, just in case there wer e other firms involved in repr esenting National L loy ds in any of these matters, the plaintiffs’ discovery reque sts inquired about those firms,

6also. For if litigation t asks i n a case a re split among sever al firms, a true pi cture of t he amount of time spent and fee s billed by attorney s repr esenting National L l o y d s can only be prese nted by disclosure of the time and billings on the c ase f rom all the firms per forming service s. When a witness testifies based on personal k nowledg e, even in part, matters within that witness’s persona l knowledg e, subject to other exclusionary rules of evidenc e, become rele vant and fall within the scope of cross examination. T E X
. R. E V I D
. 602, 611(b); see also Reid Rd. Mun. Util. Dis t

. N o
. 2 v. Speedy Stop , 337 S.W .3d 846, 850–52 (Tex. 2011). There is no dispute Doy en has
persona l know ledg e of his ow n firm’s billing rate s and at least part of the activities and time spent in litigating the case s by both his firm and the plaintiffs’ lawy ers. That surely i n cl u d es p er s o nal knowledg e of, or familiarity with, the complexit y of the issues and the time va rious activities took or reasonably should have taken; t he attorney experience level appropriate to litigate the case ; the amount of time nec essar

y to pr epar e for the various ac tiviti es such a s hear ings, discove ry reque sts and response s; a

nd very likely other fac ts and fac tors aff ecting the rea sonablene ss and nece ssity of the attorney ’s fee s soug ht. See Arthur Andersen & Co. v. Perry E q u i p
. C o r p. , 945 S.W .2d 812, 818–19 (Tex. 1997) (setting out a non-exhaustive list of fac tors to be considere d when deter mining whether an attorney ’s fee s reque st is rea sonable). His desig nation as an expert witness do es not
prec lude his also being a fac t witness and being examined as such with respe ct to the attorney ’s fee s question. See Reid Rd. , 337 S.W .3d at 850–52. I f a witness with knowledg e of rele vant fac ts about

a contested matter such as th e attorney ’s fee issue is called to testify , even as an expert, it is not subject to debate that the witness is subject to cross examination, including cross examination to test his cre dibilit y , biases (if any ), and the bases for his testimony

. See T E X
. R. E V I D
. 611(b) (“A witness

7may be cross-e x amined on any rele vant matter, including cre dibilit y .”); Davidson v. Great Nat’l Life

Ins. Co. , 737 S.W .2d 312, 314 (Tex. 1987); Goldberg v. Kelly , 397 U.S. 254, 269 (1970). Those are all matters the jury will be entitled to consider in weig hing Doy en’s testimony if the case s are tried and he te stifies; certa inly

information re flec ting on them is discover able. The Court say s that [U] nder [t hese] circ umstances, (1) compelling en masse production of a party ’s billing re cords invade s the attorney work-pr oduct privi leg e; (2) the privi leg e is not waived mere ly beca

use the party

resisting discovery

has cha lleng ed the oppone nt’s attorney -fe e re quest; and (3) such informa tion is ordinarily not discovera

ble. Ante at ___ (citing T E X
. R. C I V
. P. 192.5(b))

. But the quoted lang uag e does not apply

. Her e, the trial
court did not order National L loy ds to produce its billing rec ords en masse, nor does any one asser t that a privileg e has been waived by the company ’s challeng ing the plaintiffs’ attorney ’s fee s reque st. To the contra

ry , the specia l master rec ommended, and the trial court specific ally o rd er ed , that
p r iv ileg ed information did not have to be disclosed—National L loy ds was to reda ct such informat io n befor e producing its rec ords. Fur ther, no one claims the information is ordinarily discovera ble. But it is no ordinary situation for a party ’s trial attorney to be desig nated as a testify ing expert to dispute the opposing party ’s attorney ’s fee reque st—at least, it has not been. Thing s may well chang e afte r this case issues. Following its deter

mination that some of the reque sted information is p ro t ec t ed by the work-pr oduct privileg e, a deter mination with which I do not disag ree , the Court turns to whether the
reque sts for hourly rate s, total amounts billed, and total reimbursa ble expenses s ee k d iscovera ble information. The Court notes that this question rela tes to the scope of discovery and that the proper

8scope “extends to any unprivileg ed information that is ‘re levant to the subject matter’ of the pending

action, even if inadmissible at trial, so long as the information soug ht ‘appe ars rea sonably calc ulated to le ad to the discovery of admissible evidenc e.’” Ante at ___ (quoting T E X
. R. C I V
. P. 192.3( a))

. But the Court then sa

y s: To the extent fac tual information about hourly rate s and ag g reg ate attorney fee s is not privileg ed, that information is g ener ally irrele vant and nondiscovera ble beca use it does not establish or tend to establish the rea sonablene ss or nece ssity of the attorney fee s an opposing party

has incurr ed. Ante at ___ (citing T E X
. R. E V I D
. 401; T E X
. R. C I V
. P. 192.3). I disag ree . First of all, the information clearly tends to establish the reasonablene ss and necessity of attorney ’s fees National
L loy ds has incurre d in eac h case . And the information soug ht, at a minimum , might be rele vant to both the rea sonablene ss and nece ssity of the plaintiffs’ attorney ’s fee s in eac h case to which the defe ndant’s fe es apply

. Whil e there are cer

tainly times when counsel’s experience , the roles underta ken by counsel, and vary ing motivations make a di re ct co m p arison of time spent on a case and fee s char g ed for it i napt, there are just as cer tainly times when circ umstances in particula r case s might make a compar ison highly appropr iate. See E l A p p l e I, Ltd. v. Olivas , 370 S.W .3d 757, 766 (Tex. 2012) (He cht, J ., concur

ring ). When a party desig nates the attorney repr esenting it in a case to testify and dispute another party ’s fee reque st, the desi gn at i o n i m p l ies that the attorney will rely on his own experience in try ing and billing case s compar able to the one in which he is desig nated to testify

. I f the attorney testifies and mitigating fac tors make a fee compar ison betwee n the parties inapplicable, then objections can be lodge d based on the status of the evidenc e at the time the attorney testifies.

9See T E X
. R. E V I D
. 611(b) (providing that “[a] witness may be cross-e x amined on any rele vant matter,

includi n g cr edibi lity .”); T E X
. R. E V I D
. 401 (def ining “re levant evidenc e” as evidenc e having any tendenc y to make the exis tence of any fac t that is of conseque nce to the deter mination of the action

more probable or less probable ). I n any event, the attorney will have an opportunity to addre ss the subject and make any nece ssary clar ifications during re- d i re ct examination. And what better exemplar could there be of compar ing apples to apples than compar ing attorney activities in the very

case in which the fee s are soug ht? See El Apple I , 370 S.W .3d at 766. T h e t ri al co u rt appar ently decide d that this might be such a case . I n my view the trial court did not abuse its discretion by that decision and by

allowing the limited discovery it ordere d. Fur ther, the trial court could have, in its discretion, considere d the information soug ht as being rele vant for cross examination of lawy er Doy en reg arding the cre dibilit y of his opinions a nd testimony

. Wit ness cre dibilit y i s important reg arding contested issues, and attorney ’s fee s are no differ ent. See H

owsley & Jacobs v

. Kendall , 376 S.W .2d 562, 565 (Tex. 1964) . The Te x as Rules of Evidence expressly rec og nize that witnesses may be cross examined on their cre dibilit y . T E X
. R. E V I D
. 611(b). Thus, information used to impeach the cr edibility of a witness, even an attorney testify ing a

bout another pa

rty ’s fe es, is rele vant, as the pla intiffs arg ued to the spec ial master: We believe that we’ re entitled to know how much the Def endants spend on attorney s’ fee s and the number

of hours that they

billed for, in orde r to counter the ar g uments and testimony

that we he ard [from Doy en in the pre vious trial]

. The Court g ives sever al rea sons for concluding th a t th e r e q uested information is not rele vant. First, it say s that an opposing party may fre ely choose to spend more or less than would be “re asonable ” in compar ison to the reque sting party

. Ante at ___. But deciding what is a rea sonable

1 0fee for a case is a jury question. Certainly , a party has t he rig ht to spend whateve r it chooses on a

case . But attorney s for both sides are profe ssionally obliga ted to char g e rea sonable fe es . T E X
. D I S C I P L I N A R Y R

U L E S P R O F ’ L C O N D U C T 1.04(a)

. Be y ond that, that party ’s billing choice s should not
prec lude the party whose attorney ’s fee s it is contesting from discovering information about the time spent and fee s char g ed on a case by a testify ing witness who has been part-a nd-par cel of repr esenting the contesting party i n t h e s u i t. This holds espec ially true when, as happene d with Doy en, the desi gn ated witness has alre ady demonstrated in previous trial testimony in a simil ar case that he could not rec all specific s reg arding his firm’s time, activities, and billings for the ca se. Second, the Court say s that compar isons betwee n attorney ’s fee s of plaintiffs and defe ndants

are inapt beca

use differ ing motivations of the parties impact the time spe nt, r ate char g ed, and skill require d. Ante at ___. That may be true to some extent, but the fac t rema ins that all the lawy ers are repr esenting clients in the same lawsuit and doing much of the same work, such as filing pleading s, attending the same depositions and hear ings, doing pretria l order s and briefing , pre paring to examine and cr oss examine the same pool of witnesses, working on the s ame jury char g e, and pr epar ing to
arg ue the sa me ca se to the same jur y . There is nece ssarily

sy mmetry in a g rea t de al of the a ctivity underta ken by attorney s repr esenting clients in the same lawsuit, even thou gh t h ey represent opposing parti es . That sy mmetry is rele vant for cross-e x amination purposes if Doy en testifies
reg arding such activities and is critica l o f the homeowner s’ attorney ’s fee s reque st as to those activities. Third, the Court say s that the tasks and roles of co u n s el o n o p posite sides of a case vary fundame ntally , so even in the same case , the leg al service s rende red to opposing parties are not
1 1“fa irly char acte rized” as simil ar. Ante at ___. I disag ree . There are some differ ence s in the ty pical activities un derta ken by counsel for opposing parties i n a lawsuit, but most of t he activities are of the same g ener al nature

. And i f t h ey ar e not, the testify ing witness will have an opportunity to explain the differ ence s. I n any particula r case the issues g ener ally become appar ent ear ly on. Fr om that point, prepa

ration for the parties g ener ally entails simil ar ty pes of activities—eve n though likely
not e x actly the same activities—as set out above, and others such as rese arc hing points of law that might arise, confe rring with and corr esponding with the client reg ularly , interviewing witnesses, attending mediation, and prepa ring witnesses for trial. Any differ ence s g o to t h e we i gh t o f the evidenc e, not to whether there is some rele vancy betwee n the level and ty pes of activities and time spent by the attorney s for eac h side. At the least, there is enoug h simil arity and rele vance for the trial court to have deter

mined that the limited discovery it ordere d was wa

rra nted. Finally , the Court say s that a single law firm’s fee s and rate s do not deter m i n e t h e “customar

y ” rang e of fee s in a g ener al locality for simil ar service s. See Arthur Andersen & Co. , 945 S.W .2d at 818 (noting that the fee customarily char g ed in the locality is a fac tor to be considere d in d et er m i n i n g the rea sonablene ss and nece ssity of attorney ’s fee s). True. But say ing that a single firm’s fe es and r ates do not determine a customary or rea sonable fee is not the same as say ing tha t firm’s fee s and rate s are n o t r el ev a n t to the question. To the extent that “customar y ” fee s are in issue, an opposing party ’s fee s and rate s are cer tainly some evidenc e of the customary fee s and rate s in that locality

. As such, they are at least rele vant to what a customary or rea sonable fee would be.
I n sum, it is one thing to say that evidenc e of National L loy ds’ attorney s’ time and fee s in a particula r case is inadmissible in that case when an opposing party is seeking attorney ’s fee s in the

1 2case . Admissi bility will depend on the evidenc e and what has transpire d at trial befor e such

evidenc e is offe red, and the purpose for which it is offe red. Cf. In re E.N.C. , 384 S.W .3d 796, 805 (Tex. 2012); see also T E X
. R. E V I D
. 401 (re quiring that the evidenc e be of a “fa ct

. . . of conseque nce in deter mining the action”)

. But it is quite anot h er t h i n g t o s ay that the trial court abused its discretion by deter

mining evidenc e of the time and fee s of National L loy ds’ attorney s is discovera ble to the limit ed extent it ordered he re. C. And Furt her . . . The Cou rt as s er t s that production of any part of an attorney ’s file, even reda cted billing information, would conflict with our holding in National Union F i r e Insurance Co. v. Valdez , in wh i ch we decide d that reque sts for en masse production of an attorney ’s entire litigation fil e wa s improper beca

use it called for disclosure of privileg ed, work-pr oduct materia ls. Ante at ___ (citing Nat’l Union Fire Ins. Co. v. Valdez , 863 S.W .2d 458, 460 (Tex. 1993)). Not so. The r equests for discovery in this case are not even close to the reque sts we consi dere d in Valdez

. An attorney ’s entire file includes notes about attorney -client confe renc es, repor ts to clients, trial strateg ies and
prepa ration, and case evalua tion; just to mention a few are as and matters that are undisputedly privileg ed. No one doubts that those materia ls “nec essar ily [reveal] the attorney ’s thought proce sses

conce rning the prosec ution or defe nse of the c ase.” See V aldez , 863 S.W .2d at 460.
T h e re q u ested billing information in this case is a narr ow sliver of the entire file, an d i n Valdez we wer e car eful to note that the decision “does not preve nt a party from reque sting specific documents

. . . rele vant to issues in a pending case , even though some or all of the documents may be containe d i n an attorney ’s file.” Id. The information and documents soug ht here are limit ed,

1 3specific , and unquestionably rele vant to an issue in this case . The trial court’s authorizing National

L loy ds— b y a v e r y g e n e r a l and nonspecific order —to reda ct privileg ed information befor e producing docu m ents , was fully adequate to protec t privileg ed information absent National L loy ds demonstrating otherwise. To the extent the Court implies that the homeowner s seek to use the reque sted discovery to independe ntly support their claim for attorney ’s fee s, National L loy ds does not claim that they do. As the h o m eo wn er s arg ued to the specia l master, the discovery was soug ht only afte r Doy en’s desig nation as a witness reg arding the homeowne rs’ a ttorney ’s fe es cla im, and afte r he testified in opposition to the fee reque st of a homeowner in a differ ent trial. As discussed, the homeowner s say they only seek the information to prepa re for cross examining Doy en. So, any discussion about using the fee s National L loy ds’ lawy ers char g ed as proof of the homeowner s’ attorney ’s fee s is misplaced. Moreove r, the discovery reque sts can hardly be excessively burdensome or a g rea t expansion of the trial that will take place

. First, Na t i o n al L l o y d s did not claim that they are . Second, it is

common knowled ge among civil trial lawy ers that insurance companies require reg ular, detailed billing invoices fr om the ir attorney s. I nvoices g ener ally set out, a t the very least, the date, amount of time ta ken, and descr iption of activity for which the company is being billed. T hat information is most likely either computer g ener ated or transmitted to the comp a ny v ia p a p e r le s s billing methods. Either way , or even in the event that the billing invoices are paper instead of elec tronic, the invoices and pay ments made in response will be rea dily an d ef fi ciently available on demand. I t is also

common k n o wl ed ge in the industry that insurance companies may have the fee invoices of their attorney s audited, fre quently by independe nt companies whose business it is to revie w attorney ’s fee

1 4bills and repor t unusual or out-of-line time or activities to the auditing company ’s clients—indeed, the phrase “customar

y fee ” comes to mind reg arding such audits. See Arthur Andersen & Co. , 945 S.W .2d at 818. Assuming National L loy ds follows industry norms, t he response s to discovery order ed by the trial court should take a nominal amount of time and eff ort, even including the time
to reda ct privi leg ed information as authoriz ed by the t rial cour t

. An d i f National L loy ds does not follow industry norms, it did not mention it in the trial court, nor did it asser t or offe r evidenc e that producing the requested information an d redacted documents would take an unusual or ex cessive
amount of time, e ffor

t, or expense. I n any event, if any such problems arise, they can be prese nted to the trial court f

or re solution. As the Court explains, this situation has been broug ht about by Nati onal L loy ds’own litigation choice to desig nate its trial attorne y to testify as an e x pert. Ante at ___ n.54 (noting that parties conce rned about disclosing fee s and expenses paid to tr ial counsel can desig nate another expert witn es s or withdraw the desig nation of trial counsel as a witness). What National L loy ds should not be able to do is ha ve it both way s by using one of its trial a ttorney s to critique the time, fee s, and other details of the homeowner s’ attorney ’s fee s reque st, while scre ening from view its own attorney s’ time and fe es in the s ame c ase f or the same or similar ac tiviti es. The ma terials the tria l
court order ed discovere d, at the very least, may lead to admissible evidenc e that many , if not most, jurors would consider

rele vant in weig hing the testimony of a witness such as Doy en—how much time did the insurance company ’s lawy ers spend o n t h e case in reg ard to the items those lawy ers criticize as to the homeowners’ attorney s, and wha t did they and their insura

nce c lients consider a

rea sonable fe e for

those eff orts?

1 5III. Conclusi on

The trial court’s rea sonably cautious approa ch as to what interrog atories must be answe red and what discovery must be produced does not demons t ra t e an ab u se of discretion. There is, at a minimum , possible rele vance of the discovery soug ht to an element of the pending case . See Ford Motor Co. , 279 S.W .3d at 664. There simply has been no showing that National L loy ds’ comply ing with the trial court’s discovery order would result in undue prejudice or abusive discovery prac tices.
I t most cer

tainly would not result in confusion of the issues—it is a discovery order , not a ruling on the admissibilit y

of the infor

mation or documents soug ht.
I would deny

mandamus re lief. B eca

use the Court does other

wise, I respe ctfully

dissent.

________________________________________ Phil J ohnson J ustice

OP INION DELIVERED: J une 9, 2017

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