In re Nitla S.A. De C.V. - 92 S.W.3d 419 (Tex. 2002)

Rule:

Mandamus is an extraordinary remedy that will issue to correct a clear abuse of discretion only if the relator lacks an adequate appellate remedy. A party generally lacks an adequate appellate remedy if its counsel is disqualified. 

Facts:

Nitla, a Mexican pharmaceutical company, sued Bank of America. The company claimed that the bank misappropriated over $ 24 million of its funds on deposit. During discovery, the company asked the bank to produce certain documents but the bank resisted and asserted the attorney-client and work-product privileges. The trial court identified numerous documents that it determined the bank should produce. At the second hearing, after considering the additional briefing and oral arguments, the trial court ordered the bank to produce the previously identified documents. Again, it asked the trial court to stay production. Nevertheless, the trial court granted in part, the company’s motion to compel production. The trial court next handed the documents, which were under the trial court's control, directly to the company’s counsel. After the bank 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. After another hearing, the trial court again overruled the bank’s objection that the documents were privileged. However, the trial court ordered the company to return the documents pending appellate review. The bank then reurged its mandamus petition in the court of appeals, and the court of appeals held that most of the documents were privileged. The bank then moved to disqualify the counsel but it was denied. The bank sought mandamus relief from the trial court's order denying disqualification. The court of appeals reviewed the trial court's decision under Meador, 968 S.W.2d at 346, and it conditionally issued the writ. 

Issue:

Did the appellate court properly issue the mandamus?

Answer:

No.

Conclusion:

The court held that the appellate court misapplied the law and thus abused its discretion. The court then granted the company’s motion for rehearing, and conditionally grant a writ of mandamus and directed the court of appeals to vacate its order. The court explained that the party moving to disqualify opposing counsel had to show that opposing counsel's review of the privileged documents caused actual harm to the moving party. The court also ruled that disqualification was necessary because the trial court lacked any lesser means to remedy the moving party's harm. The court found that the bank could not show that the company's trial strategy had significantly changed after reviewing the documents. That it could only demonstrate that reviewing the documents might have enabled the company's counsel to identify new witnesses to depose, and that the additional testimony could potentially harm the bank. Thus, the court held that the trial court properly determined that less severe measures, such as quashing depositions, could cure the bank's alleged harm.