In Re: Union Carbide Corporation--Appeal from 23rd District Court of Brazoria County

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 22, 2003

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 22, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-01360-CV

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IN RE UNION CARBIDE CORPORATION, Relator

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ORIGINAL PROCEEDING

WRIT OF MANDAMUS

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

On December 5, 2003, relator, Union Carbide Corporation, filed a petition for writ of mandamus in this Court. See Tex. Gov t Code Ann. 22.221 (Vernon Supp. 2003); see also Tex. R. App. P. 52. In its petition, relator seeks to have this Court compel the Hon. J. Ray Gayle, III, Administrative Judge, 23rd Judicial District Court, Brazoria County, Texas, to set aside his order of November 24, 2003, in trial court cause number 19785-BH02, styled Kelly-Moore Paint Company, Inc. v. Dow Chemical Company, et al., ordering production of a privileged communication, prepared in anticipation of litigation, from a physician employed in relator s medical department to a Union Carbide attorney. Relator also filed a motion for emergency temporary relief asking that we stay the trial court s order compelling production of the April 4, 1983 memorandum from Dr. Hilton Lewinsohn to Sula Baye, an attorney in relator s legal department. See Tex. R. App. P. 52.10. On December 5, 2003, this Court

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granted a stay of production of the Lewinsohn memo until final decision by this Court on relator s petition for writ of mandamus, or until further order of this Court.

Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, when there is no other adequate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). When alleging that a trial court abused its discretion in its resolution of factual issues, the party must show the trial court could reasonably have reached only one decision. Id. at 918. As to determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840.

In determining whether the writ should issue, we must further determine whether the party has an adequate remedy by appeal. Id. Mandamus is intended to be an extraordinary remedy, only available in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). An appellate remedy is not inadequate merely because the party may incur more expense and delay than in obtaining the writ. Walker, 827 S.W.2d at 842. In the context of discovery, the appellate remedy may be inadequate in three situations: (1) when the appellate court cannot cure the trial court s discovery order, such as where the trial court orders disclosure of privileged documents; (2) where the party s ability to present a viable claim or defense is vitiated or severely compromised; and (3) when the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, thereby precluding appellate review. Id. at 843.

After reviewing the document in question in camera, we conclude it is privileged. See Tex. R. Evid. 503(a)(2)(B), (b)(1)(a); Tex. R. Civ. P. 192.5(a). Real party has not established any exception to the privilege. See Tex. R. Civ. P. 192.5(b)(2), (c). We therefore hold the trial court abused its discretion in ordering production of the Lewinsohn memo. Accordingly, we conditionally grant relator s petition for mandamus relief and direct Judge Gayle to vacate his order of November 24, 2003, ordering production of the Lewinsohn memo. We presume Judge Gayle will comply, and mandamus will issue only if he fails to do so.

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed December 22, 2003.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.