Unreported / Non-Citable
Background
The underlying litigation concerns title to mineral interests and related royalty rights. One unresolved issue is whether EOG Resources, Inc. acquired certain mineral interests as a bona fide purchaser.
During discovery, Broadway National Bank sought documents bearing on that issue. EOG withheld title opinions, attorney memoranda, and communications with counsel as privileged, identifying them in a privilege log and supporting its claims with corporate affidavits. After reviewing items 3, 4, 5, 10, and 15 in camera, the trial court found that EOG had waived the attorney-client privilege and ordered their production. EOG sought mandamus relief.
The Court’s Holding
The Fourth Court of Appeals conditionally granted mandamus relief, holding that EOG established a prima facie claim of attorney-client privilege and that Broadway failed to establish waiver. EOG’s production of a redacted 2013 title memorandum and an October 2013 email did not disclose a significant part of the withheld privileged communications. The produced materials neither quoted nor revealed a significant portion of those communications, and merely using or referencing counsel’s legal advice did not waive the privilege.
The court also rejected offensive-use waiver because EOG was defending against Broadway’s claims rather than seeking affirmative relief. Because disclosure of privileged communications cannot be remedied adequately on appeal, mandamus was proper. The court directed the trial court to vacate its order requiring production of the five disputed items and stated that the writ would issue only if the trial court failed to comply.
Key Takeaways
- Disclosure concerning the same subject matter does not waive attorney-client privilege unless it reveals a significant part of the privileged communication itself.
- A party does not necessarily waive privilege merely by using, referencing, or communicating a legal conclusion based on counsel’s advice.
- Offensive-use waiver did not apply because EOG asserted defenses and sought no affirmative relief independent of Broadway’s claims.
Why It Matters
The decision draws a practical boundary between disclosing a legal position and disclosing the privileged advice underlying that position. A produced document or external communication referring to counsel’s conclusion does not automatically open related attorney communications to discovery.
It also confirms that mandamus remains available when a discovery order erroneously compels privileged material, because disclosure would destroy confidentiality before an ordinary appeal could provide relief.