Court of Appeals of Texas, Houston (1st Dist.).

FIDELITY & CASUALTY COMPANY OF NEW YORK, Relator.

v.

The Honorable Carolyn Day HOBSON, Judge of the County Civil Court at Law Number Three of Harris County, Texas, Respondent.

No. 01-90-00078-CV.

|

Feb. 08, 1990.

OPINION

PER CURIAM.

*1 Relator asks us to vacate the respondent’s order granting a motion to compel discovery filed by the real party in interest, Yolanda Perez. We overrule relator’s motion for leave to file a petition for writ of mandamus.

The underlying controversy arose when Perez sought workers’ compensation benefits from the relator. Her claim for benefits was filed on February 23, 1988. Perez filed suit against the relator in early July 1988, alleging bad faith in the handling of her insurance claim (the “bad faith suit”). On May 17, 1989, the Industrial Accident Board (”IAB”) denied the workers’ compensation claim. On October 26, 1989, Perez appealed the IAB’s determination by filing a second lawsuit, this one for workers’ compensation benefits (the “workers’ compensation suit”). The two lawsuits have not been consolidated and are pending in different county civil courts at law.

On November 27, 1989, Perez filed a request for production of documents in the workers’ compensation suit. She requested, in part, the “complete investigative and claims file of [relator] regarding the claim of [Perez] compiled prior to May 17, 1989,” the date of the IAB hearing. On December 27, the relator objected to this request on the ground that it sought documents exempt from discovery under Tex. R. Civ. P. 166b(3)(a)-(d).

Each of those discovery exemptions–for work product, consulting experts, witness statements, and party communications– applies only to documents that are prepared in anticipation of litigation. Boring & Tunneling Co., Inc. v. Salazar, No. 01-89- 00868-CV (Tex. App.–Houston [1st Dist.] Nov. 30, 1989, orig. proceeding)(not yet reported). Only documents prepared in connection with the prosecution or defense of the lawsuit in which discovery is sought are protected by these exemptions. Turbodyne v. Heard, 720 S.W.2d 802, 804 (Tex. 1986). As the party resisting discovery, the relator was burdened with producing evidence supporting its claims of exemption. Tex. R. Civ. P. 166b(4).

The respondent held a hearing on relator’s discovery objections on January 12, 1990. The relator tendered the affidavit of Becky Wolf Lawrence, an employee of Continental Loss Adjusting Services and Underwriters Adjusting Company (”Continental”), as the only evidence in support of its objection to Perez’s discovery request. The affidavit does not state whether, or how, Continental is related to the relator. That affidavit recites, in pertinent part: “On July 7, 1988, the Plaintiff’s attorney informed me he would be filing a bad faith suit. Five (5) days later, a copy of those pleadings [was] received by CONTINENTAL LOSS ADJUSTING SERVICES. I had a reasonable belief on July 7, 1988 that litigation would ensue.”

The Lawrence affidavit was insufficient to carry the relator’s burden of proving the applicability of the pleaded discovery exemptions, because the affidavit makes no reference to any documents prepared in anticipation of litigation. The party resisting discovery has the burden of proving that the requested documents were prepared in anticipation of litigation, not merely that the affiant felt litigation was likely. Turbodyne v. Heard, 720 S.W.2d at 804. In Turbodyne, the supreme court held that the trial court abused its discretion in granting protection based on affidavits that failed to “affirmatively state that these documents were prepared in connection with or in anticipation of a subrogation suit.” Id. We cannot hold that the respondent abused her discretion in denying discovery, when the only evidence before her failed to affirmatively state that the documents requested were prepared in anticipation of litigation.

*2 We hold that the relator waived the discovery exemptions it pleaded by failing to produce evidence supporting its objection. In light of our holding, we need not address the relator’s argument that documents in connection with the bad faith suit are also exempt from discovery in the workers’ compensation suit.

We OVERRULE the motion for leave to file a petition for writ of mandamus.

Do not publish. Tex. R. App. P. 90.