Saturday, July 26, 2008

Privilege claim lost by filing document at issue unsealed

On the second try for appellate court mandamus, the Fourteenth Court of Appeals rules that litigant who invoked privilege waived the claim of privilege by filing unsealed copies of the consulting expert's report she wanted protected. The Court concludes that voluntary and intentional disclosure of the document at issue defeats the privilege, and denies the petition for mandamus relief.

In re Heide Ortuno
(Tex.App.- Houston [14th Dist.] July 24, 2008)(orig. proc.)(mem. op.)
(discovery mandamus re: consulting expert privilege claim denied)


A party waives a privilege if it voluntarily discloses the privileged information to an open court. See Stroud Oil Props., Inc. v. Henderson, No. 02-03-00003-CV, 2003 WL 21404820, at *3 (Tex. App.- Fort Worth June 19, 2003, pet. denied) (mem. op.). Likewise, the voluntary submission of unsealed materials in an appellate record waives any asserted privileges as to those materials:

Some of the evidence . . . was included in the appellate record in this cause. These documents were made part of the record on December 28, 2004. They were included in the appellate record after [Appellee] asserted its claims of privilege. Nothing in this court's file evidences any attempt by [Appellee] to recall these documents as privileged. Therefore, for the present litigation, we conclude that [Appellee's] prior assertion of privilege as to these documents has been waived. Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14 (citation omitted). Because Yorkshire presented as a regular appeal, the responsibility for preparing, certifying, and timely filing the record therein lay with the trial court personnel. See Tex. R. App. P. 35.3. By contrast, in a mandamus proceeding, the relator - here, Ortuno - prepares and files the mandamus record. See Tex. R. App. P. 52.7(a). This obligation does not relieve her of the duty to properly preserve an asserted privilege, as through, for example, the submission of a sealed mandamus record. See, e.g., In re Jeffcoat, No. 01-04-00430-CV, 2005 WL 428213, at *1 (Tex. App.- Houston [1st Dist.] Feb. 24, 2005, orig. proceeding [mand. denied]) (mem. op.).

Ortuno has voluntarily filed unsealed copies of the Caudle report on at least two occasions. We conclude that she has not carried her burden of demonstrating that she did not waive the consulting-expert privilege. See Giffin, 688 S.W.2d at 114; Stroud Oil Props., Inc., 2003 WL 21404820, at *3; Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14.

We therefore do not find that the trial court abused its discretion in denying Ortuno's motion for protection. Because of our resolution here, we need not address the trial court's other stated grounds for denying Ortuno's requested relief.

Accordingly, we deny the petition for writ of mandamus.

In re Heide Ortuno (Tex.App.- Houston [14th Dist.] July 24, 2008)(Brown) (discovery mandamus denied, order of protection, privilege claim waived by voluntary disclosure)
Opinion by Justice Jeff Brown
Panel: Before Justices Brock Yates, Guzman and Brown
Appeals Court case number: 14-08-00457-CV
Full case style: In Re: Heide Ortuno, Individually and as next friend of J.O. a minor child
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton

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