Appeals court sides with appraisal district in Total Petrochemical tax case

David Yates Jun. 16, 2010, 5:51am

An appellate court recently granted the Jefferson County Appraisal District's writ of mandamus, overturning a lower court's ruling authorizing Total Petrochemicals to uncover the identity of a JCAD jury consultant.

In September 2006, Total filed a suit challenging JCAD's tax appraisal of its Port Arthur refinery. While deposing Mark Brumbaugh, one of the district's testifying experts, Total learned that opposing counsel had conducted a mock trial utilizing the services of a jury consultant.

When JCAD refused to give up the consultant's identity, Total filed a motion to compel discovery, which was granted by Judge Milton Shuffield on Jan. 14.

JCAD responded immediately by filing motions to reconsider and for a protective order on its assertion of discovery objections and privileges, court papers say.

Judge Shuffield denied the district's motion, forcing JCAD to submit a writ of mandamus compelling the trial court to vacate its order.

On June 10 the Texas Ninth District Court of Appeals issued an opinion conditionally granting the district's appeal.

"JCAD ... asks this Court to enter a modified order sustaining each of JCAD's assertions of privilege and objections to Total's interrogatories, and reversing (Shuffield's) order directing JCAD to supplement its discovery responses and to 'conclude that JCAD is not required to produce any of the information sought by Total, and that Total is not entitled to depose JCAD's jury consultant,'" states the court's per curiam opinion.

"Because the information Total seeks to discover is privileged or outside the scope of discovery, we conditionally grant the writ of mandamus."

Court papers show that on the morning of the hearing on Total's motion to compel, Total served JCAD with the following four interrogatories seeking information about JCAD's jury consultant and the mock trial:

  • With regard to any consulting expert whose mental impressions or opinions have been reviewed by a testifying expert, please provide the expert's name, address, and telephone number.

  • Please identify by name and address all persons present during the Mock Trial which occurred in Beaumont, Texas, on or about Sept. 3, 2009.

  • Please identify by name and address all persons present during the Mock Trial follow-up which occurred on or about Sept. 9, 2009.

  • Please identify by name and address the jury consultant in charge of the Mock Trial which took place in Beaumont, Texas on or about Sept. 3, 2009.

    Total had argued during the hearing that JCAD waived the work product privilege by allowing its testifying experts to view the mock trial, court papers say.

    On appeal, JCAD argues the trial court's discretion to control the scope of discovery is not unlimited, and Judge Shuffield exceeded his authority by granting Total's motion.

    "We find the trial court abused its discretion in ordering discovery that exceeds the scope permitted by the rules, and JCAD has no adequate remedy by appeal," justices opined.

    "The writ of mandamus is conditionally granted. The trial court shall vacate its orders signed on Jan. 14, 2010, and Feb. 5, 2010. We are confident the trial court will comply with this opinion. A writ will issue only if the trial court fails to comply."

    Total is represented in part by attorney M. C. Carrington of Mehaffy Webber in Beaumont.

    JCAD is represented in part by attorneys Amanda G. Taylor, Amy Keith, Robert Summers, Robert Q. Keith and Tom Hanna.

    Appeals case No. 09-10-00074-CV
    Trial case No. D177-740

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