In re GMAC Commercial Finance, LLC--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00186-CV

In re GMAC Commercial Finance, L.L.C.

Original Proceeding

DISSENTING Opinion

This is a classic situation in which an appellate court is not equipped to decide the issue presented. In this post-decision motion, we are asked to determine whether a document, alleged at one time to have been protected by a privilege, has lost that privilege. The parties have engaged in no discovery about the circumstances under which the document was attached to a brief/appendix filed in this Court.

If we have jurisdiction to decide this motion, the Court should abate this matter to the trial court for the development of a record upon which the issue could be properly decided. It is not that I disagree with the Court s conclusion, I simply do not have the information available to me which is necessary to decide the issue.

There is a substantial question of whether the inclusion of the document in the appendix constitutes a waiver of the privilege. Because this document was not produced in discovery, the discovery rules regarding inadvertent production are not applicable. Prior to the adoption of the discovery rules related to inadvertent production, a fair amount of case law had developed on what must be shown to support a retrieval of a document the parties did not intend to disclose to opposing counsel.[1] It is that body of case law against which we should review these facts to determine if the privilege genie can be reinserted in the magic lamp. It appears it can be, but I just do not have the information, facts, and briefing necessary to make that determination.

The only case cited by the majority relies upon our authority to enter temporary orders. See Monsanto v. Davis, 110 S.W.3d 23, 29 (Tex. App. Waco 2002, order). This authority does not support our sealing of the document and for it to remain sealed until it is destroyed. Nor do we, on the record before us, have any authority to order the return or destruction of copies provided to opposing counsel.

In conclusion, the trial court should develop the factual record and make the initial determination regarding whether the privilege once held, if any, has been lost. I do not join this order. I cannot concur in what the Court has done, so I have no alternative but to dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed July 27, 2005

[1] Inadvertent production is distinguishable from involuntary production. A party who permits access to unscreened documents may, due to inattention, unwittingly--but nonetheless voluntarily--disclose a privileged document. Disclosure is involuntary only if efforts reasonably calculated to prevent the disclosure were unavailing. Thus, although disclosure does not necessarily waive privileges, a party claiming involuntary disclosure has the burden of showing, with specificity, that the circumstances confirm the involuntariness of the disclosure. In addition to precautionary measures, other factors to be examined in determining involuntariness include the delay in rectifying the error, the extent of any inadvertent disclosure, and the scope of discovery. This standard is consistent with the approach adopted by numerous federal courts which now determine waiver by evaluating the circumstances of the disclosure. See Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 587-88 (N.D.N.Y. 1989); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 329 (N.D. Cal. 1985); see also KL Group v. Case, Kay & Lynch, 829 F.2d. 909, 919 (9th Cir. 1987); Clady v. County of Los Angeles, 770 F.2d. 1421, 1433 (9th Cir. 1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1516, 89 L. Ed. 2d 915 (1986). Many state courts also take this approach. See generally McGlynn v. Grinberg, 172 A.D.2d 960, 568 N.Y.S.2d 481 (Sup. Ct. App. Div. 1991); Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D. 1990); Kanter v. Superior Court, 206 Cal. App. 3d 803, 253 Cal. Rptr. 810 (Cal. App. 2d Dist. 1988); Sterling v. Keidan, 162 Mich. App. 88, 412 N.W.2d 255 (Mich. App. 1987).

Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 226 (Tex. 1992).