client company’s title opinion for a specific tract of land when that client company is involved in title litigation. Evidence is presumed to be discoverable. The burden is on the party resisting discovery to plead the privilege claimed, and to present evidence supporting the claim. Loftin v. Martin , 776 S.W.2d 145, 147 (Tex.1989); TEX.R.CIV.P. 166b(4). 1. 2. If the matter sought to be discovered is privileged, it is not subject to discovery. West v. Solito , 563 S.W.2d 240, 243 (Tex.1978). Rule 166b(3) (e) exempts from discovery any matter protected from disclosure by privilege. Texas Rule of Civil Evidence 503 covers the attorney-client privilege. It applies only to “confidential” communications which are 3. communications meant to be secret and which are made“for the purpose of facilitating the rendition of professional legal services to the client.” TEX.R.CIV. EVID. 503(b). 4. The statements and legal advice of the attorney to its client are as protected as the communications of the client to the attorney. Boring & Tunneling Co. of America v. Salazar , 782 S.W.2d 284, 290 (Tex.App. - 1989, orig. proceeding). 5. Rule 166b(3)(a) provides an exemption for the work product of an attorney. However, that exemption is limited to the work done by an attorney in preparation for litigation. Evans v. State Farm Mutual Auto. Ins. Co ., 685 S.W.2d 765, 767 (Tex.App. - 1985, writ ref’d n.r.e.). This exemption protects from disclosure documents, communications, mental impressions, reports, opinions, and legal theories prepared in actual anticipation of litigation or trial. If the materials are assembled in the ordinary course of business (such as an original title opinion/supplemental title opinion for drilling/royalty purposes) then they are not protected by the exemption. The exemption is not an umbrella for materials assembled in the ordinary course of business. Brown & Root U.S.A., Inc. v. Moore , 731 S.W.2d 137 (Tex.App. - 1987, orig. proceeding). In this case,
company may elect to waive a title requirement. 1. Factual risk- A title requirement can be waived where the facts are unknown as of the date of the opinion and can never be ascertained with absolute certainty. (Ex.- Who are the heirs of a party in 1854) Management is betting, if the title requirement is waived, that (i) the facts, if ever known, they will be in its favor or (ii) that the facts will never be known and no party will ever complain. 2. Legal Risk- In this situation, a title requirement can be waived where all facts are known but the law on a given issue is unclear. Once again, the waiving party is hoping that the issue will never be brought up or, if it is, that it will be successful in subsequent litigation. 3. Apparent Risk- In this situation, the facts and/ or the law are against the waiving party. It usually arises in very old title problems which, if ever raised, could put the client’s title in jeopardy. The client waives the title requirement based on the belief that the issue will never be raised by any third party. 4. Money Risk- Waiver occurs in this situation where the cost of the curing the title problem exceeds the value of loss of title. Again, a waiver of title for monetary reasons usually occurs when dealing with very old title matters and the cost of curing same is far more expensive that the outstanding risk they pose. Time Risk- Many title requirements are waived where the curing of same would take a very long time and would hamper the client’s proposed operations. 5.
Issue 2 : Discovery of O’s title opinion(s),
both original and supplemental
The recent case of Arkla Inc. v Harris , 846 S. W. 2d. 623 (Tex. App. – 1993) is a case where one party requested that the other party (owner of certain title opinions) be compelled to produce same. The case reviews the various rules of law regarding privilege, how to validly assess same as well as how to keep title opinions from discovery. The following rules of law generally govern the discoverability of a
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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