In Re Nitla S.A. De C.v.

92 S.W.3d 419 (2002)

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Nature of the Case

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Facts

P, a Mexican pharmaceutical company, sued D, Bank of America, claiming that D misappropriated over $24 million of Nitla's funds on deposit. P asked D to produce certain documents. D asserted attorney-client and work-product privileges. After an in camera inspection and a hearing, the trial court determined D should produce some of the documents. D asked the trial court to stay production until D decided whether to seek emergency relief in the court of appeals. The trial court requested additional briefing and scheduled another hearing. The trial court also indicated it would order D to produce any nonprivileged documents at that time. At the second hearing, the court ordered D to produce the documents. D again asked the court to stay production. D reasoned that of P's counsel reviewed the documents, D would be irreparably harmed and if the court of appeals determined them privileged, D's counsel could be disqualified. The trial court granted P's motion to compel production. It then handed the documents, which were under the trial court's control, directly to P's counsel, obviously, before D could seek mandamus relief. P's counsel relied on the trial court's order and reviewed the documents. D filed for mandamus relief. The court of appeals abated the proceeding to allow the trial court's new judge to reconsider his predecessor's decision. The trial court again overruled D's objection that the documents were privileged. The trial court ordered P to return the documents pending appellate review. P complied and D then renewed its mandamus petition in the court of appeals, and the court of appeals held that most of the documents were privileged. D moved to disqualify P's counsel. The trial court denied D's motion to disqualify. It held that no competent evidence showed that P's counsel had developed its trial strategy based on the documents. The trial court determined that it had less severe measures available to prevent P from using the privileged information to gain unfair advantage. D sought mandamus relief from the trial court's order denying disqualification. The court of appeals conditionally issued the writ. P petitioned the Supreme Court of Texas to mandamus the court of appeals.