Court of Appeals of Texas,

Houston (1st Dist.).

FIBREBOARD CORPORATION, Relator,

v.

The Honorable Neil CALDWELL, Judge of the 23rd District Court of Brazoria County, Texas, Respondent.

No. 01-92-00610-CV.

|

November 9, 1992.

O P I N I O N

SAM BASS, Justice.

*1 Relator asks mandamus relief from this Court, alleging that portions of respondent’s May 5, 1992, order require it to produce documents that are exempt from discovery as confidential attorney-client communications, work product, or both. We grant the motion for leave to file and conditionally grant the writ of mandamus relating to certain documents.

The plaintiffs in the underlying asbestos litigation,¹ the real parties in interest here, filed a third request for production of certain numbered documents (approximately 255) to relator, Fibreboard Corporation (Fibreboard), about June 15, 1989. The request did not describe the subject matter of the documents sought, but merely requested them by “Bates” number. On July 13, 1989, Fibreboard moved for an extension of time to answer and asserted that all of the documents requested appeared to be privileged. Fibreboard filed a response on September 1, 1989, to the plaintiffs’ third production request, and specifically asserted what privilege-attorney-client or work product-it claimed for each document.

Motions for sanctions, motions to compel production, responses, hearings, in camera review by a master, orders for production, withdrawal of such orders, and issuance of new orders followed. On May 5, 1992, based on the master’s report, supplemental report, and additional report, respondent, Judge Caldwell, ordered relator to produce approximately 126 of the documents specified in the plaintiffs’ third production request, in whole or in part. Relator continues to assert these documents, the ones at issue here that have been submitted in camera, are privileged. Judge Caldwell found the other documents were either privileged as work product or confidential advice of counsel or excluded them from production on the grounds of relevancy. Relator does not complain about these exclusions.

In his May 5 order, Judge Caldwell made the following specific findings of fact:

2. The evidence contained within the documents ordered produced by FIBREBOARD is found by this Court to be relevant or reasonably calculated to lead to the production of evidence relevant to issues….

3. Full development of the issues in this cause requires production of the documents set out below.

….

5. Defendant did not make a claim of “attorney client” privilege for each of its documents as earlier maintained in a mandamus action against this Court’s prior order and did not make such a claim for each document prior to the Order of February 2, 1991.

6. Defendant did not prove by extrinsic proof or through the documents that each qualified as confidential communications of an attorney and client made for the purpose of eliciting legal services, except documents 3446, 49013 and 49051-49067.

7.[The] statement in FIBREBOARD’S active pleadings [concerning “state of the art”]² constitutes more than a statement of an “intent” to offer rebuttal evidence; it identifies the nature of such rebuttal proof. Documents 32282-32285, 32286-32307 are some evidence that the above pleading contains false assertions as to the knowledge of Defendant FIBREBOARD. To allow FIBREBOARD to withhold documents showing knowledge that it denies in active pleadings would effect a fraud upon the Plaintiffs and the Court, removing such documents from the scope of the rules governing privilege …. the Court finds that the content of FIBREBOARD’s documents contains some evidence that the statement in its pleadings is false and that therefore, the document production is required.

*2 8. Document 49050 …. does not constitute an exempt party communication because it was not given for the purpose of eliciting legal advice nor as part of the rendition of legal services; it is not a privileged confidential communication from an attorney to client … it is not the work product of an attorney….

9. Defendant FIBREBOARD abused the discovery processes by filing discovery responses that were obscured by numerous objections and that provided little substantive information.

Judge Caldwell further found “insufficient proof that production is prevented by Protective Orders or the claims of privilege made for the documents.”

Fibreboard complains that the May 5 order is an abuse of discretion because (1) it proved that each of the documents sought to be excluded from discovery were confidential attorneyclient communications, work product, or both, (2) its “state of the art” pleading is immaterial to its privilege claims and does not raise the fraud exception to the attorney-client and work product exemptions, (3) the relevance of its documents does not outweigh the privileges attached to them, and (4) it has not waived its privilege claims by alleged discovery abuse.

Fibreboard’s second argument concerns finding seven, which affects only documents 32282-32285 and 32286-32307. The documents have not been submitted to us for in camera review. Therefore, we decline to address this argument.

In its third argument, attacking findings two and three, Fibreboard contends that “relevancy” and “necessity” are themes that underlie the master’s reports and Judge Caldwell’s order. Fibreboard states, relying on West v. Solito, 563 S.W.2d 240 (Tex. 1978, orig. proceeding), and Smith v. White, 695 S.W.2d 295 (Tex. App.-Houston [1st Dist.] 1985, orig. proceeding), that privilege cannot give way to relevancy or necessity. In its fourth argument, Fibreboard asserts that finding nine is an implicit imposition of waiver of privileges as a sanction for other alleged misconduct. For several reasons, we do not consider either of these arguments.

First, the scope of discovery rests within the discretion of the trial court. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989, orig. proceeding). With respect to the resolution of factual issues committed to the trial court’s discretion, we do not substitute our judgment for that of the trial court, unless the relator shows the decision to be arbitrary or unreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992, orig. proceeding). Relator has failed to show us evidence in the record that demonstrates findings two, three, or nine are arbitrary or unreasonable. Second, while relator argues that findings two, three, and nine resulted in Judge Caldwell’s conclusion that the documents in question were not privileged, the language of the findings themselves does not indicate this. Furthermore, the remainder of the order establishes that if the trial court found a document to be privileged, production was not required, regardless of relevancy, necessity, or waiver.

*3 We proceed to examine Fibreboard’s main argument, that it proved the documents sought to be excluded from discovery were confidential attorney-client communications, attorney work product, or both. To do so, we look at the in camera documents submitted to this Court, Fibreboard’s response to the plaintiffs’ third request for production, and the October 3, 1989, affidavit of R. A. Beck,³ the same evidence relied on by the trial court in arriving at its decision that the documents in question were not privileged. Despite the trial court’s finding five, that “Defendant did not make a claim of ‘attorney-client’ privilege for each of its documents … prior to the Order of February 2, 1991,” the record before us shows that relator asserted its privileges in its September 1, 1989, response to the plaintiffs’ third production request. The real parties in interest do not argue that Fibreboard failed to preserve its privilege claims or that it failed to present the documents in question for in camera inspection. See TEX. R. CIV. P. 166b(4) (a party seeking to exclude any matter based on privilege must specifically plead the privilege and produce evidence to support the claim; if the trial court determines an in camera review is necessary, the objecting party must produce the documents for such review); see also Loftin v. Martin, 776 S.W.2d 145, 147 (Tex. 1989, orig. proceeding) (the privilege must be specifically plead; evidence in support must be provided; in camera production must be done if requested); Southwest Inns, Ltd. v. General Elec. Co., 744 S.W.2d 258, 262 (Tex. App.-Houston [14th Dist.] 1987, no writ) (when the trial court follows the proper procedural steps and determines the in camera documents are privileged, it is incumbent upon the appellate court to examine the documents and determine whether the trial court abused its discretion).

For mandamus to issue, the relator must establish the trial court committed a clear abuse of discretion, and that the relator is without a clear and adequate remedy at law. Walker, 827 S.W.2d at 839, 840. However, the Texas Supreme Court has held a party will not have an adequate remedy by appeal when the trial court erroneously orders the disclosure of privileged information. Walker, 827 S.W.2d at 843. Accordingly, with respect to the disclosure of documents claimed to be covered by the attorney-client or work product privilege, we focus only on whether an abuse of discretion has occurred.

Privileges are not favored in the law and are strictly construed. Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 647 (Tex. 1985, orig. proceeding). The burden of proof to establish the existence of the privilege rests on the one asserting it. Id. at 647-48.

Rule 166b(3)(a) of the Texas Rules of Civil Procedure provides that the work product of an attorney is protected from disclosure by privilege. The work product privilege exempts from disclosure all documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories prepared and assembled by an attorney, or the attorney’s agent, in anticipation of litigation or for trial. Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686, 687 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding); Toyota Motor Sales, U.S.A., Inc. v. Heard, 774 S.W.2d 316, 317-18 (Tex. App.-Houston [14th Dist.] 1989, orig. proceeding). Determining whether a document was prepared in anticipation of litigation requires a two-step analysis. See Flores, 777 S.W.2d at 40 (defining “anticipation of litigation” for purposes of the party communications privilege under TEX. R. CIV. P. 166b(3)(d)); see also Foster v. Heard, 757 S.W.2d 464, 465-66 (Tex. App.-Houston [1st Dist.] 1988, orig. proceeding) (discussing “in anticipation of litigation” for purposes of party communications and experts privilege under TEX. R. CIV. P. 166b(3)(b), (d)). First, there must be an objective examination of the facts surrounding the investigation, with consideration given to outward manifestations that indicate litigation is imminent. Id. at 40-41. Second, there must be a subjective examination: Did the party opposing discovery have a good faith belief that litigation would ensue? Id. at 41.

*4 The work product privilege protects only the mental impressions and strategy of the attorney, not the facts of the case. Leede Oil & Gas, Inc., 789 S.W.2d at 687; see OwensCorning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991, orig. proceeding) (primary purpose of rule is to shelter mental processes, conclusions, and legal theories of attorney; rule does not extend to facts attorney may acquire; see also Hickman v. Taylor, 329 U.S. 495, 511-12 (1947) (“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.”). The mere fact that lawyer effort has gone into obtaining the material does not make it work product. Leede Oil & Gas. Inc., 789 S.W.2d 687; see Owens-Corning Fiberglas Corp., 818 S.W.2d at 750 n.2; Axelson v. McIlhany, 798 S.W.2d 550, 554 n.8 (Tex. 1990, orig. proceeding).

Rule 503(b) of the Texas Rules of Civil Evidence provides that a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or its representative and the client’s lawyer or lawyer’s representative, (2) between the client’s lawyer and the lawyer’s representative, (3) between representatives of the client or between the client and a representative of the client, or (4) among lawyers and their representatives representing the same client. See West, 563 S.W.2d at 245. A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. TEX. R. CIV. EVID. 503(a)(5). If the matter for which a privilege is sought has been disclosed to a third party, thus raising the question of waiver of the privilege, the party asserting the privilege has the burden of proving that no waiver has occurred. Jordan, 701 S.W.2d at 649; Cameron County v. Hinojosa, 760 S.W.2d 742, 745-46 (Tex. App.-Corpus Christi 1988, orig. proceeding). A representative of the client is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client. TEX. R. CIV. EVID. 503(a)(2). The party asserting the privilege must establish, and not merely assert, that its representative had the authority to obtain professional legal services or to act on any legal advice the attorney might render. Texas Dep’t of Mental Health and Mental Retardation v. Davis, 775 S.W.2d 467, 473 (Tex. App.-Austin 1989, orig. proceeding). The attorney-client privilege does not extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications. MortgageAmerica Corp. v. American Nat’l Bank, 651 S.W.2d 851, 858 (Tex. App.-Austin 1983, writ ref’d n.r.e.). The Beck Affidavit

*5 The Beck affidavit dated October 3, 1989, is the primary extrinsic evidence relied on by Fibreboard to establish its work product (WP) and attorney-client (AC) privileges for all the documents submitted for in camera review. Beck’s affidavit states of himself that, “I have never considered myself as other than a member of Fibreboard’s legal department, and have always felt that my role as such was solely to give legal advice and representation to the company.” He states that the documents at issue here “were prepared by Fibreboard’s employees, agents, attorneys or agents of Fibreboard’s attorneys in anticipation of, investigation of, or in preparation for litigation.” He adds that

“Fibreboard’s counsel and defense team were aware fairly early in the asbestos litigation (by which time it already was apparent that numerous asbestos-related personal injury cases had been and would continue to be filed against Fibreboard) that strategies and facts developed for one case likely would be critical to the defense of subsequent cases. Therefore, Fibreboard’s factual investigations and development of legal theories from that time forward were conducted with a comprehensive litigation strategy in mind. There is no other discussion of any facts that lead to a conclusion that litigation was anticipated. He goes on to say that

Fibreboard enforced a policy of confidentiality with respect to all documents, reports, memoranda, correspondence, notes and files that concerned or discussed litigation in which Fibreboard was involved, including the documents [at issue here]. Under this policy only Executive, Managerial, and Legal Department personnel were authorized to review such documents.

The affidavit spoke of the persons with whom Beck communicated as follows:

As counsel to Fibreboard, it was necessary for me to keep Executives, Managers and agents of the corporation apprised of developments in the underlying asbestos cases as well as the later dispute with the corporation’s insurers. It was also necessary for me to receive communications from these persons in order to accurately represent their point of view to other manufacturers’ counsel, outside counsel and others.

Other persons immediately involved in the defense of Fibreboard-including Fibreboard’s various attorneys, other individuals at Fibreboard, and other agents and representatives of Fibreboard-also required such information, and needed to communicate it to other essential personnel in order to assure the effective defense of Fibreboard.

He identified the “officers and managers at Fibreboard that I considered to comprise the natural, essential group of people with whom I personally should communicate in-house” to include the following: R. G. Anderson, George W. Burgess, V.H. Erickson, R.F. Gamble, H.P. Hoopes, Arvid Kretz, J.S. Mitchell, and F.A. Nordstrom. None of the representatives of Fibreboard’s insurer are designated as part of this “essential group.” The affidavit does not define who are the client representatives authorized to obtain professional legal services or to act on legal advice so rendered.

Group A Documents

*6 30821-30822: Relator asserted WP and AC privileges. The document is stamped “privileged and confidential,” as are all the documents submitted for this Court’s in camera inspection, with the same type of stamp. The author is in-house counsel Beck, and the recipients are R.G. Anderson, Mitchell, Erickson, Kretz, Gamble, and Sturtevant. Page 30821 contains facts available from public records, but no mental impressions or legal strategy of an attorney; page 30822 contains legal strategy. We find the trial court did not abuse its discretion in finding no AC privilege because there is no evidence that the recipients were “client representatives” as defined in TEX. R. CIV. EVID. 503(a)(2). We find the trial court did not abuse its discretion in finding no WP privilege for 30821 and in ordering production of the fact statements only, but it was an abuse of discretion in failing to find all of 30822 subject to the WP privilege.

30836-30837: AC privilege asserted. Beck is the author; Anderson, Mitchell, Erickson, Kretz, Sturtevant, and Gamble are the recipients. The pages discuss the settlement value of various lawsuits. We find the trial court did not abuse its discretion in ordering production of the fact statements only and in finding no AC privilege because there is no evidence that the recipients were “client representatives” as defined in TEX. R. CIV. EVID. 503(a)(2).

30838-30839: WP and AC privileges asserted. Beck is the author; Anderson, Mitchell, Erickson, Kretz, Gamble, and Sturtevant are the recipients. We have previously noted there is no evidence that the recipients are “client representatives” as defined in TEX. R. CIV. EVID. 503(a)(2). The pages contain facts available from public records, but no mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding no AC or WP privilege and in ordering production of the fact statements only.

42925: WP and AC privileges asserted. Beck is the author; Hoopes is the recipient. There is no evidence that Hoopes is a “client representative” as defined in TEX. R. CIV. EVID. 503(a)(2). The communication contains fact information, not the mental impressions or trial strategy of an attorney. We conclude the trial court did not abuse its discretion in finding no AC or WP privilege.

50317, 50428, and 50432: WP and AC privileges asserted. Beck is the author; McNertney, an attorney and manager of Fibreboard’s workers’ compensation department, is the recipient. The communication sought information to answer interrogatories and motions to produce. We conclude the trial court abused its discretion in finding the documents were not protected by the WP privilege.

GROUP B DOCUMENTS

49536-49538: WP and AC privileges asserted. Undated document authored by Beck, but distributed to no one. The document contains a history of Fibreboard and its manufacture of asbestos. The document contains facts, not mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in ordering production of the fact statements only.

*7 49539-49544 and 58800: WP and AC privileges asserted. Undated document authored by Beck, but distributed to no one. The document contains facts, not mental impressions or legal strategy of an attorney. The document contains a description of asbestos, asbestosis, and asbestos-related injuries. We conclude the trial court did not abuse its discretion in ordering production of the fact statements only. The AC privilege is inapplicable.

49547-49548 (“Warning”): WP and AC privileges asserted. Undated document authored by Beck, but distributed to no one. The paragraph in question contains mental impressions or legal strategy of an attorney. We conclude the trial court abused its discretion in ordering production of the paragraph.

50478-50483 and 50484-50487: WP privilege asserted. Undated document authored by Mitchell, Fibreboard’s general counsel, and distributed only to Beck. The pages contain a list of people and workers’ compensation information on them. The pages do not contain mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in ordering production of the fact statements only.

58811-58812 (“Industrial Insulations”): WP and AC privileges asserted. Undated document authored by Beck, but distributed to no one. The paragraph contains a description of the asbestos content of industrial insulations and describes when the dangers became known. The paragraph does not contain mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in ordering production of the paragraph because it is not protected by the WP privilege. The AC privilege is inapplicable.

GROUP C DOCUMENTS

248, 265-279, 300-305, 309-310, 5395, and 5398: WP privilege asserted. Undated documents authored by Beck and distributed to no one. The pages are handwritten notes, largely containing peoples’ names. We conclude the trial court abused its discretion in ordering production of the notes; however, the names of potential witnesses or persons having knowledge of asbestos are not privileged.

5459-5460 and 58745: WP and AC privileges asserted. The document is a letter from the Asbestos Information Association to George Burgess, president and chief executive officer of Fibreboard. The document contains some handwritten notes of Beck, which the trial court has allowed Fibreboard to redact. We conclude the trial court did not abuse its discretion in finding the letter not privileged.

GROUP D DOCUMENTS

42713: WP and AC privileges asserted. The document is a 1970 memorandum from G. B. Henderson, a Fibreboard sales manager, to Beck. Weller (local counsel in Beaumont), Ackley (a Fibreboard sales manager), and Hoopes also received copies. The memo was in response to Beck’s request for information. There is no evidence that Hoopes or Ackley are client representatives having authority to obtain legal services or to act on legal advice. The memorandum does not contain mental impressions or legal strategy, but concerns what companies used Fibreboard products on projects. There are no facts provided to allow us to objectively and subjectively test whether the document was prepared in anticipation of litigation. We conclude the trial court did not abuse its discretion in finding the sales and product information were not privileged.

GROUP E DOCUMENTS

*8 14584-14585: WP privilege asserted. This document is from Beck’s files. The author and date are unknown, so there is no evidence about whether this is an attorney’s work product or if it was prepared in anticipation of litigation. The trial court permitted the last four paragraphs on 14584 and the last paragraph on 14585 to be redacted. The remaining paragraphs contain only fact information. We conclude the trial court did not abuse its discretion in finding the remaining paragraphs not privileged.

48950: WP privilege asserted on handwritten notes. The document is a memorandum from Gamble to Henderson; copies went to Hoopes, Sheffield (a Fibreboard plant manager), Maxwell (in Fibreboard sales), and Nordstrom (a Fibreboard vice-president). The handwritten notes are Beck’s. We conclude the trial court abused its discretion in not finding the handwritten notes privileged. The trial court should allow the handwritten notes to be redacted.

GROUP F DOCUMENTS

42895 and 42896: WP and AC privileges asserted. These are the handwritten notes of Hoopes of a conversation he had with Fibreboard outside counsel, George Weller. There is no evidence that Hoopes is a client representative having the authority to obtain legal services or act on legal advice. The notes do not contain the mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the handwritten notes not privileged.

GROUP G DOCUMENTS

46727: AC privilege asserted. This is a transmittal letter from Beck to Fibreboard’s outside counsel in San Francisco. We conclude the trial court abused its discretion in finding the letter not privileged.

46754-46776: WP privilege asserted. This document was compiled by an outside attorney for Fibreboard, and was commented on by Beck. We conclude the trial court abused its discretion in finding the document not privileged. However, the information in the document is all factual and is not itself privileged.

GROUP H DOCUMENTS

32300-32307: WP and AC privileges asserted. This is a memorandum from outside counsel to Fibreboard’s in-house counsel. It discusses Fibreboard’s liability insurance policy. It meets the criteria of an attorney-client privileged communication under TEX. R. CIV. EVID. 503(b). We conclude the trial court abused its discretion in finding the document privileged only if Fibreboard agreed to stipulate insurance coverage. 49050 (the handwritten note): WP and AC privileges asserted. This is a handwritten note from Mitchell to Beck. It concerns the implementation of the legal advice from outside counsel. It meets the criteria of an attorney-client privileged communication under TEX. R. CIV. EVID. 503(b). We conclude the trial court abused its discretion in finding the handwritten note was not privileged.

42894: WP and AC privileges asserted. This is a letter from Hoopes to outside counsel Weller. Copies were also sent to Nordstrom and Summers (Fibreboard’s corporate insurance and automobile services manager). It is transmitting a brochure on Fibreboard’s product, “CALTEMP.” It also discusses the composition of CALTEMP. This is not a document assembled by an attorney or the attorney’s agent in preparation for trial. There is no evidence that Hoopes, Nordstrom, or Summers is a client representative having the authority to obtain legal services or to act on legal advice. We conclude the trial court did not abuse its discretion in finding the document was not privileged.

*9 48990: AC privilege asserted. This is a letter from Beck to outside counsel. It advises of the postponement of the Borel trial and encloses some suit papers. We conclude the trial court abused its discretion in finding the document was not privileged.

49026-49027: WP and AC privileges asserted. These are draft interrogatory answers drafted by Beck and transmitted to Weller. We find this document to be covered by both the WP and AC privileges. We conclude the trial court abused its discretion in finding the document was not privileged.

49046: WP and AC privileges asserted. This is a letter from Beck to outside counsel. The first paragraph discusses magazine articles concerning asbestos. The second paragraph concerns amending answers to interrogatories. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the letter are discoverable.

49659 and 49676-49677: WP and AC privileges asserted. These are two letters from Back to two different outside lawyers. 49659 is a transmittal letter, in addition to discussing “rebrands;” 49676-49677 is a letter containing sales information. We conclude the trial court abused its discretion in finding the documents not privileged; however, the fact statements in 49659 and 49676-49677 are discoverable.

49698-49705: WP and AC privileges asserted. This is a letter, plus attachments, from Beck to an outside lawyer. It discusses the names, addresses, years of employment, and classifications of various Fibreboard employees. We conclude the trial court abused its discretion in finding the documents not privileged; however, the fact statements in the documents are discoverable.

49709-49710: WP and AC privileges asserted. This is a letter from Beck to an outside lawyer. It concerns answers to supplementary interrogatories. We find this document to be covered by both the WP and AC privileges. We conclude the trial court abused its discretion in not finding the document privileged.

49711: WP and AC privileges asserted. This is a transmittal letter from Beck to an outside lawyer, which accompanied various Fibreboard brochures, federal specifications, and a third party report. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the document are discoverable.

49736-49737: WP and AC privileges asserted. This is a letter summarizing documents and transmitting documents from Beck to outside counsel. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the document are discoverable.

49805-49806: WP and AC privileges asserted. This is a letter from Beck to outside counsel. The information concerns packaging. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the document are discoverable.

*10 49819-49820: WP and AC privileges asserted. This is a letter from Beck to outside counsel. We conclude the trial court abused its discretion in finding the document not privileged.

49827-49828: WP and AC privileges asserted. This is a letter from Beck to outside counsel. The information concerns sales to the U.S. government. We conclude the trial court abused its discretion in finding the document not privileged; however, the facts in the document are discoverable. 49840-49842: WP and AC privileges asserted. This is a letter from Beck to outside counsel. It concerns sales to specific companies for specific years. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the document are discoverable.

49857: WP and AC privileges asserted. This is a letter from Beck to outside counsel. It concerns “rebrand” sales. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in the document are discoverable.

49862-49863: WP and AC privileges asserted. This is a letter from Beck to outside counsel. It concerns “rebrand” sales. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact information in the document is discoverable.

77755: AC privilege asserted. This is a letter from Beck to all outside counsel concerning amending interrogatories. We conclude the trial court abused its discretion in finding this document not privileged.

GROUP J DOCUMENTS

3381 and 3424: WP and AC privileges asserted. This is a letter from outside counsel Weller to R.C. Vanston of Fibreboard’s insurance carrier. Copies were sent to Beck, another Fibreboard outside counsel, and Don Barton, another employee of Fibreboard’s insurance carrier. There is no evidence to show that either Vanston or Barton is a client representative of Fibreboard. The document concerns a questionnaire on health hazards sent to union members; it does not contain mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the document not privileged.

34068-34069: AC privilege asserted. This is a letter from Weller to Vanston. It concerns settlement of certain asbestos cases. There is no evidence that Vanston is a client representative of Fibreboard. We conclude the trial court did not abuse its discretion in finding the document not privileged.

42892-42893: WP and AC privileges asserted. This is a letter to Weller from Summers, Fibreboard’s corporate insurance manager, with copies to Vanston and Hoopes. There is no evidence that Summers is a client representative of Fibreboard, so any AC privilege is inapplicable. The letter contains only facts, not mental impressions or legal strategy of an attorney, so the WP privilege is inapplicable. We conclude the trial court did not abuse its discretion in finding the document not privileged.

GROUP K DOCUMENTS

*11 49373-49374: WP privilege asserted. The documents are undated, draft publicity statements by Talcott, another in-house attorney for Fibreboard, and Beck. They do not contain mental impressions or legal strategy of attorneys. There is no evidence they were prepared in anticipation of litigation. We conclude the trial court did not abuse its discretion in finding the documents not privileged.

77097: WP privilege asserted. The document is a company memo from Talcott to Merlo and Simpson, officers in Fibreboard Corporation and Louisiana Pacific Corporation (the former owner of Fibreboard). It discusses lawsuits already pending against Fibreboard and contains mental impressions and legal strategy of an attorney. We conclude the trial court abused its discretion in finding the document not privileged.

79172-79173: AC privilege asserted. This is a memorandum from Crowell, Louisiana Pacific Corporation’s general counsel, to Beck. It concerns conversations with an attorney for a codefendant. We conclude the trial court abused its discretion in finding the document not privileged.

GROUP L DOCUMENTS

53396-53454: WP privilege asserted. This is a letter and report from insurance adjusters, apparently for one of Fibreboard’s insulation distributors, to a law firm apparently representing the distributor. There is no evidence that this is a work product prepared by an attorney or an attorney’s agent in anticipation of litigation. We conclude the trial court did not abuse its discretion in finding the document not privileged.

GROUP M DOCUMENTS

2057-2058, 49263-49264, and 56517-56518: WP privilege asserted. This is a memorandum from an attorney at GAF Corporation to 14 other attorneys (including Beck) and four other people. According to Beck’s affidavit, this document was prepared jointly by counsel for defendants in anticipation of, investigation of, or preparation for litigation, “as their content reveals.” The memorandum shows no mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the documents not privileged, and in allowing redaction of paragraphs (1)-(7).

3564-3565 and 49323-49324: WP privilege asserted. This is a letter from an attorney with Johns-Manville to Beck. Although Beck’s affidavit claims this document was prepared jointly by counsel for defendants in anticipation of, investigation of, and preparation for litigation, “as their content reveals,” the letter shows no mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the document not privileged, and in allowing redaction of paragraphs (1)-(4).

3566 and 49325: WP privilege asserted. This is a list of attorneys from various companies who attended a meeting. This is discoverable information, which does not contain mental impressions or legal strategy. We conclude the trial court did not abuse its discretion in finding the document not privileged.

*12 3572 and 49333: WP privilege asserted. This is a transmittal letter from a Johns-Manville attorney to other attorneys, including Beck, which accompanied a meeting agenda. It does not contain mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the document not privileged.

3574-3575: WP privilege asserted. With the redaction of paragraphs one through three, the letter does not contain mental impressions or legal strategy of an attorney. We conclude the trial court did not abuse its discretion in finding the document, as redacted, not privileged.

3576-3578 and 49337-49339: WP privilege asserted. The letter contains plans for legal strategy. We conclude the trial court abused its discretion in finding the document not privileged.

48935: AC privilege asserted. This is an invitation to a meeting. Rule 503(b)(3) provides that the AC privilege extends to confidential communications made for the purpose of facilitating legal services to the client by a client’s representative or its lawyer to a lawyer representing another party in a pending action and concerning a matter of common interest. There is no evidence that the attorneys represent parties in a pending action, that they are discussing matters of common interest, that the communications are confidential, or that the communications are made to facilitate the rendering of professional legal services. Because the requirements of TEX. R. CIV. EVID. 503(b) have not been met, we conclude the trial court did not abuse its discretion in finding the document not privileged.

49003-49004: WP and AC privileges asserted. This is a letter from Fibreboard’s outside counsel, Weller, to Page Keeton. Copies of the letter went to 14 other people. None of the recipients is identified as a “client representative” or as a lawyer of a party in a pending action concerned with matters of common interest, as set forth in TEX. R. CIV. EVID. 503(a)(2), (b). We conclude the trial court did not abuse its discretion in finding the document not covered by the AC privilege; however, we conclude it was an abuse of discretion to find the document not covered by the WP privilege.

56455-56457: WP privilege asserted. This is an agenda and list of meeting participants. It does not contain legal strategy or mental impressions of an attorney. We conclude the trial court did not abuse its discretion in finding the document not privileged.

GROUP N DOCUMENTS

5367 and 5368: WP and AC privileges asserted. These are transmittal letters from Beck to two outside attorneys representing Fibreboard. We conclude the trial court abused its discretion in finding the documents were not privileged; however, the fact information in the letters is discoverable.

GROUP P DOCUMENTS

The trial court ordered Fibreboard to produce specific fact statements from 33660-33663, 33670-33675, 33682-33684, 33685, and 33686. Fibreboard asserted WP and AC privileges for all the documents. According to Beck’s affidavit, these documents “appear” to be the handwritten notes of the general counsel for Louisiana Pacific, Fibreboard’s former parent, taken at meetings concerning the asbestos litigation. Because Beck cannot unequivocally state that these documents are the work product of an attorney prepared in anticipation of litigation, we conclude the trial court did not abuse its discretion in finding the specified fact statements not covered by the WP privilege. There is no evidence that these were confidential communications, made for the purpose of facilitating rendition of professional legal services, between the client or the client’s representative and other persons allowed under TEX. R. CIV. EVID. 503(b). We conclude the trial court did not abuse its discretion in finding the specified fact statements not covered by the AC privilege.

GROUP R DOCUMENTS

*13 49545: WP and AC privileges asserted. This is an undated document authored by Beck that appears to summarize deposition testimony. We conclude the trial court abused its discretion in finding the document not privileged; however, the fact statements in it are discoverable.

CONCLUSION

We find that Judge Caldwell abused his discretion in ordering the production of the following documents over Fibreboard’s claim of privilege:

Group A-30822, 50317, 50428, and 50432. Group B-49547-49548 (“Warning”). Group C-248, 265-279, 300-305, 309-310, 5395, and 5398. Group E-48950 (handwritten notes). Group G-46727 and 46754-46776. Group H-32300-32307, 49050 (handwritten note), 48990, 49026-49027, 49046, 49659, 49676-49677, 49698-49705, 49709-49710, 49711, 49736-49737, 49805-49806, 49819-49820, 49827-49828, 4984049842, 49857, 49862-49863, and 77755.

Group K-77097 and 79172-79173.

Group M-3576-3578, 49337-49339, and 49003-49004. Group N-5367 and 5368. Group R-49545.

Accordingly, with respect to the documents listed above in this section, we grant relator’s motion for leave to file, conditionally grant the writ of mandamus, and order the trial court to amend the May 5, 1992, order to exempt from production the documents listed above. We are confident that Judge Caldwell will act in accordance with this opinion. The writ will issue only in the event he fails to comply.

DO NOT PUBLISH-TEX. R. APP. P. 90.

	Footnotes
1		Heathman v. Owens-Corning Fiberglas Corp., No. 87-C-1934 (Dist.Ct. of Brazoria County, 23rd Dist. of Texas).
2		In its responsive pleading, Fibreboard asserted a “state of the art” defense; that is, it claimed its products conformed to the state of the art in existence at the time the products were designed, tested, manufactured, formulated, packaged, and provided with a warning, because at that time, the medical and scientific community were of the opinion that the exposures to which asbestos insulation workers were subjected were reasonably safe. Therefore, the asbestos insulation products were not “defective” or “unreasonably dangerous” as those terms are understood in product liability Texas law.
3		Relator also refers us to the supplemental affidavit of R.A.