Argonaut Southwest Insurance Company, Relator v. Honorable W.T. McDonald, Jr., Visiting Judge, 12th Judicial District Court, Madison County, Texas, Respondent--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-91-175-CV

ARGONAUT SOUTHWEST INSURANCE COMPANY,

Relator

v.

HONORABLE W. T. McDONALD, JR., VISITING

JUDGE, 12TH JUDICIAL DISTRICT COURT,

MADISON COUNTY, TEXAS,

Respondent

ORIGINAL PROCEEDING

O P I N I O N

In this mandamus action, Relator asserts that Respondent abused his discretion in ordering the production of certain letters written by Relator's attorney prior to the institution of the underlying suit. Because the letters have been viewed and copied by the adverse party, the matter is moot and we will deny the petition for writ of mandamus.

After the adverse party requested a copy of Relator's investigative file, including three letters written by its attorney, Relator sought protection under Rule 166b of the Rules of Civil Procedure. See Tex. R. Civ. P. 166b 4; Tex. R. Civ. Evid. 503. Respondent ordered that the documents be submitted for an in camera inspection. After his inspection was completed, Respondent placed those documents which he deemed not discoverable in one envelope, marked it "Documents privileged to remain sealed as a part of the papers of the cause," and filed it with the district clerk. The documents he deemed discoverable were placed in a second envelope, marked "Documents not privileged to be copied for or by [adverse party's attorney] only," and also filed it with the district clerk. Respondent wrote a letter to the parties, outlining his ruling on the documents and advising each of the disposition of the documents. Nine days later, the adverse party went to the district clerk's office and obtained a copy of all documents in the discoverable envelope, including the attorney-client letters made the basis of the petition in this court.

Although better practice would dictate a period of delay before allowing the discovering party to actually view documents which have been inspected in camera, during which the producing party could seek review of the discovery order, the fact is that the adverse party has viewed and copied the letters in question.

Relator urges us to order that "no party or person shall be allowed to use the subject documents as evidence in any case or in any proceeding in the civil courts of the State of Texas," a suggestion beyond the scope of this proceeding. Disclosure to the adverse party does not necessarily equate to admissability in any given proceeding. See Tex. R. Civ. Evid 512. The question of admissibility will be determined at the time the documents or any part thereof are actually offered into evidence in a proceeding.

We deny the petition for writ of mandamus.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Writ of mandamus denied

Opinion delivered and filed October 23, 1991

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