Opinion issued August 13, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-26-00594-CV
IN RE TRIPLE C PROJECT SERVICES, LLC, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
In this mandamus proceeding, Triple C Project Services, LLC contends that
the trial court abused its discretion by compelling it to produce privileged non-core
work product. See TEX. R. CIV. P. 192.5.1
1
The underlying case is Cynthia Martinez Individually and as Representative of the
Estate of Jeff Rendon and Yaresi Flores, a/n/f of M.R., K.R., and A.R. v. Enterprise
Products Partners L.P., Enterprise Products Operating LLC, Enterprise Products
Texas Operating, LLC, and Triple C Project Services, LLC, cause number 2022-76693, pending in the 125th District Court of Harris County, the Honorable Kyle
Carter presiding.
We agree and conditionally grant mandamus relief.
Background
The underlying suit alleges that on August 4, 2022, James Rendon was
working for Triple C at a plant in Mont Belvieu, Texas. While working around
chemical reactors, Rendon collapsed and was taken to the Texas Medical Center.
He died from his injuries two days later.
On August 5, 2022, after learning of Rendon’s workplace injury, Carl
Manchaca, Triple C’s president, spoke with his outside risk manager and insurance
broker as well as a safety consultant. Triple C also submitted a Serious Event
Report to OSHA.
Two days later, on August 7, Manchaca learned that Rendon had died.
Triple C’s safety consultants then informed Manchaca that he needed to gather
additional information on the circumstances of Rendon’s incident in anticipation of
an inspection by OSHA and a wrongful death lawsuit by Rendon’s family.
The following day, August 8, Manchaca, Triple C’s safety consultant, and an
OSHA representative had an initial meeting, and OSHA scheduled an on-site
inspection for the next day. Based on this initial meeting, Manchaca believed the
incident would result in litigation. Shortly thereafter, Manchaca, Triple C’s Vice
President of Operations, and an Administration Support Specialist, interviewed
Triple C employees who were with Rendon at the plant on the day of the incident.
2
Nearly three months later, in November 2022, Cynthia Martinez Individually
and as Representative of the Estate of Jeff Rendon and Yaresi Flores a/n/f of M.R.,
K.R., and A.R. (“Martinez”) sued Triple C and other defendants for negligence,
gross negligence, and premises defect. During discovery, Triple C provided a
privilege log stating that the post-incident interview notes and minutes from a
Triple C team meeting following an OSHA closing conference were privileged
work product.
Nearly three years after filing suit, Martinez moved to compel discoverable
information—including the post-incident notes and the minutes from the Triple C
team meeting. Martinez claimed that the post-incident notes were discoverable
because litigation had not been filed at that point and no attorneys were involved.
And, that it was “especially important to Plaintiffs as it is impossible for Plaintiffs
to secure this information outside of these notes, since none of the employees that
worked with Jeff Rendon at the Enterprise location on the day of the incident are
still employed with Triple C.”
Martinez further claimed that the former employees who were interviewed
“obviously had a more detailed memory of events immediately following the
incident, than over a year later”—and that the minutes from the Triple C team
meeting were not protected by the work product privilege.
3
Triple C responded, arguing that its interview notes were privileged work
product because the notes were taken in anticipation of litigation with OSHA and
Rendon’s family. Triple C also argued that the minutes from its internal team
meeting following the OSHA closing conference—which occurred after Triple C
had retained counsel and after Martinez filed suit—were likewise protected work
product.
Triple C disputed that Martinez could not obtain the same information
because Triple C had provided supplemental disclosures listing the last known
address, telephone numbers and email addresses of the former employees. And it
noted that Martinez had already deposed Vincent Garcia Jr. and Danny Luna—
who were present at the scene and described the event without any recollection
problems—and had already obtained OSHA’s investigation, which included notes
from OSHA’s interviews with these employees. Additionally, according to Triple
C, Martinez failed to establish the “substantial need” exception under Rule
192.5(b)(2).2
Attached to Triple C’s response to the motion to compel was a sworn
declaration by Manchaca. His declaration, which was uncontroverted, stated that
2
See TEX. R. CIV. P. 192.5(b)(2) (“Any other work product is discoverable only
upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of the party’s case and that the party is unable without
undue hardship to obtain the substantial equivalent of the material by other
means.”).
4
Triple C’s investigation from August 7 onward was done in anticipation of
litigation by OSHA and/or Rendon’s family. And that he believed, at that point in
time, that litigation was likely because of the “litigious nature of our society,” the
advice from Triple C’s risk manager, insurance broker and safety consultants, and
the fact that a fatality was involved. Manchaca further stated in his sworn
declaration that Triple C’s investigation was not performed in the ordinary course
of its business.
During the hearing on the motion to compel, the trial court asked to review
the withheld materials in camera to determine whether a privilege applied and
questioned whether “anticipation of litigation” applied to anticipating OSHA
litigation. In supplemental briefing, Triple C argued that Martinez has known the
identity of the individuals since at least April 2023. And Martinez argued in its
supplemental briefing that the materials sought were not prepared in anticipation of
litigation because the note takers were not lawyers and the notes were made in the
ordinary course of Triple C’s business.
The trial court granted Martinez’s motion to compel and ordered Triple C to
produce the documents that had been submitted for in camera review. Triple C
then sought mandamus relief in our Court and a stay of the trial court’s order. We
granted the stay—and now grant mandamus relief.
5
Standard of Review and Applicable Law
To be entitled to a writ of mandamus, a relator must demonstrate that the
trial court abused its discretion and that the relator has no adequate remedy by
appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
proceeding). The scope of discovery permitted by a trial court is reviewed for an
abuse of discretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Walker, 827 S.W.2d at 839. Mandamus relief is available when the trial court
erroneously orders the disclosure of privileged information because appeal does
not provide an adequate remedy. See In re Christus Santa Rosa Health Sys., 492
S.W.3d 276, 279 (Tex. 2016) (orig. proceeding); In re E.I. DuPont de Nemours &
Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam).
The party who seeks to limit discovery by asserting a privilege has the
burden of proof. In re E.I. DuPont, 136 S.W.3d at 223. “To meet its burden, the
party seeking to assert a privilege must make a prima facie showing of the
applicability of a privilege by first asserting the privilege.” In re BP Prods. N. Am.
Inc., 263 S.W.3d 106, 112 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding). A prima facie showing is the “minimum quantum of evidence
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necessary to support a rational inference that the allegation of fact is true.” See In
re E.I. DuPont, 136 S.W.3d at 223 (quoting Tex. Tech Univ. Health Scis. Ctr. v.
Apodaca, 876 S.W.2d 402, 407 (Tex. App.—El Paso 1994, writ denied)).
Here, Triple C has asserted the work product privilege. Work product
comprises both (1) material prepared or mental impressions developed in
anticipation of litigation or for trial by or for a party or a party’s representatives
and (2) a communication made in anticipation of litigation or for trial between a
party and the party’s representatives or among a party’s representatives. See TEX.
R. CIV. P. 192.5(a). The Texas Supreme Court has generally described “work
product” as “specific documents, reports, communications, memoranda, mental
impressions, conclusions, opinions, or legal theories, prepared and assembled in
actual anticipation of litigation or for trial.” Nat’l Tank Co. v. Brotherton, 851
S.W.2d 193, 200 (Tex. 1993).
The “anticipation of litigation” test is met when a reasonable person would
have concluded from the totality of the circumstances that there was a substantial
chance that litigation would ensue and the party asserting the work product
privilege subjectively believed in good faith that there was a substantial chance
that litigation would ensue. Id. at 195, 204, 207.3 A “substantial chance of
3
See also Trevino v. Ortega, 969 S.W.2d 950, 956 (Tex. 1998) (“[T]rial courts must
look at the totality of the circumstances and decide whether a reasonable person in
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litigation” does not “refer to any particular statistical probability that litigation will
occur” but “simply means that litigation is more than merely an abstract possibility
or unwarranted fear.” Id. at 204. “If a reasonable person would conclude from the
severity of the accident and the other circumstances surrounding it that there was a
substantial chance that litigation would ensue, then the objective prong” is
satisfied. Id.
“The subjective prong is properly satisfied if the party invoking the privilege
believes in good faith that there is a substantial chance that litigation will ensue.”
Id. This requires “that the investigation actually be conducted for the purpose of
preparing for litigation.” Id. In this regard, “the circumstances must indicate that
the investigation was in fact conducted to prepare for potential litigation.” Id. at
206.
A party may reasonably anticipate suit being filed and prepare for the
expected litigation before anyone manifests an intent to sue. Id. at 204. Actual
notice of a potential lawsuit is not required. See Trevino v. Ortega, 969 S.W.2d
950, 957 (Tex. 1998) (noting that in National Tank, court did not require actual
notice of potential litigation for party to anticipate litigation). Although the
subjective prong requires the investigation to be conducted for the purpose of
preparing for litigation, Rule 192.5 does not require that the sole or primary
the party’s position would have anticipated litigation and whether the party
actually did anticipate litigation.”).
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purpose of the material or communication be for preparing for litigation. See TEX.
R. CIV. P. 192.5.
The work product of an attorney or an attorney’s representative that contains
their mental impressions, opinions, conclusions, or legal theories, is not
discoverable. See id. 192.5(b)(1). Any other work product, sometimes referred to
as non-core work product, is discoverable only upon a showing that the party
seeking discovery has substantial need of the materials to prepare the case and they
are unable to obtain the substantial equivalent of the material by other means
without undue hardship. See id. 192.5(b)(2).
Analysis
Triple C argues that the withheld materials are non-core work product
developed in anticipation of litigation. See id. 192.5(a)(1). To meet its burden,
Triple C submitted the materials to the trial court for an in camera inspection and
provided Manchaca’s uncontroverted sworn declaration.4
4
Manchaca’s sworn declaration was attached to Triple C’s response and filed the
day before the trial court’s hearing. This was not timely under Rule 193.4(a). See
TEX. R. CIV. P. 193.4(a) (party asserting privilege must serve any affidavit
evidence necessary to support the privilege at least seven days before the hearing
or at such other reasonable time as the court permits). Generally, if nothing
appears in the record to indicate that the trial court permitted a different
“reasonable time” for submitting affidavit evidence, we must presume that the trial
court did not consider the late-filed evidence. See Benchmark Bank v. Crowder,
919 S.W.2d 657, 663 (Tex. 1996). But that presumption is not absolute. “[C]ourts
should examine whether the record affirmatively indicates” that the late evidence
was “accepted or considered.” B.C. v. Steak N Shake Ops., Inc., 598 S.W.3d 256,
260 (Tex. 2020) (internal quotations omitted). A trial court’s recital in a judgment
9
According to Martinez, the interview notes are not work product because no
attorneys were present during the investigation. However, nothing in Rule
192.5(a) requires an attorney to be present for materials to be considered non-core
work product. See id. 192.5(a).5
Martinez also disputed below that Triple C’s interview notes were made in
anticipation of litigation. In asserting that the post-incident notes were prepared in
the ordinary course of business, Martinez relied on Luna’s deposition testimony.
Luna’s testimony merely confirmed that Triple C investigated, not that the
or order that it generally considered the evidence without any limitation is an
“affirmative indication” that it considered late-filed evidence and “overcomes the
presumption that the trial court did not consider it.” Id. at 261; see also Ramirez v.
Sanchez, No. 01-21-00417-CV, 2023 WL 2919545, at *7 (Tex. App.—Houston
[1st Dist.] Apr. 13, 2023, no pet.) (mem. op.).
Here, the trial court’s order states without any limitation that it considered “the
documents submitted for in camera review, the motion, response, if any, evidence,
arguments of counsel, if any, and law” in making its ruling. We must therefore
presume that the trial court considered Triple C’s response which attached
Manchaca’s sworn declaration. See Stavron v. SureTec Ins. Co., No. 02-19-00125-CV, 2019 WL 6768125, at *6 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.)
(mem. op.) (“If the trial court considered SureTec’s late-filed reply, it considered
the late-filed evidence that was attached to the reply.”). And we must also
presume that it considered the sworn declaration itself as “evidence.” See B.C.,
598 S.W.3d at 261; Ramirez, 2023 WL 2919545, at *7.
5
In re Fairway Methanol LLC, 515 S.W.3d 480, 490–91 (Tex. App.—Houston
[14th Dist.] 2017, orig. proceeding) (“Rule 192.5 protects all materials developed
and all communications made by a party’s employees in anticipation of litigation”
and “[t]he work product privilege extends both to documents actually created by
the attorney and to memorandum, reports, notes, or summaries prepared by other
individuals for the attorney’s use.”); In re Energy XXI Gulf Coast, Inc., No. 01-10-00371-CV, 2010 WL 5187730, at *6–7 (Tex. App.—Houston [1st Dist.] Dec. 23,
2010, orig. proceeding) (mem. op.) (concluding that relator established that
internal communications were protected by work-product privilege).
10
investigation was done in the ordinary course of business. But contrary to
Martinez’s assertion, Manchaca’s uncontroverted declaration states that the
investigation was not performed in the ordinary course of its business due to the
circumstances of this fatality incident.
Martinez also argues that the post-incident interview notes were witness
statements, which were not protected by the work product privilege. Although we
agree that a witness statement is excluded from the work-product privilege,6 Rule
192.3(h) expressly states that “notes taken during a conversation or interview with
a witness are not a witness statement.” TEX. R. CIV. P. 192.3(h); In re Energy XXI
Gulf Coast, Inc., No. 01-10-00371-CV, 2010 WL 5187730, at *7 (Tex. App.—
Houston [1st Dist.] Dec. 23, 2010, orig. proceeding) (mem. op.). Accordingly, we
disagree with Martinez that the post-incident interview notes fall within an
exception to the work product privilege.
We have also conducted our own in-camera inspection of the sealed
materials,7 which include interview notes from multiple workers that were present
at the plant during the time of the incident. Without disclosing the contents of the
6
See TEX. R. CIV. P. 192.5(c)(1) (excluding “information discoverable under Rule
192.3 concerning experts, trial witnesses, witness statements, and contentions”
from work product privilege).
7
See In re Energy, 2010 WL 5187730, at *6 (“Because the trial court reviewed [the
sealed documents] in camera and they remain sealed in the record before us, we
are not at liberty to discuss the contents of these documents in our opinion.”).
11
documents, the undisputed evidence shows that a Triple C employee died after
collapsing at a plant where he had been working, safety consultants told Manchaca
that he could expect litigation, and Manchaca believed that litigation from either
OSHA or Rendon’s family was likely. The sealed materials along with
Manchaca’s uncontroverted declaration show that Triple C presented prima facie
evidence that the materials were objectively and subjectively prepared in
anticipation of litigation and are non-core work product. See TEX. R. CIV. P.
192.5(a)(1); see, e.g., In re DuPont, 136 S.W.3d at 223 (“[A]n affidavit, even if it
addresses groups of documents rather than each document individually, has been
held to be sufficient to make a prima facie showing of attorney-client and/or work
product privilege.”).
Similarly, the minutes from the Triple C team meeting following the OSHA
closing conference were made after this suit was filed and after Triple C had
retained counsel. Under these circumstances, we conclude that Triple C likewise
presented prima facie evidence that these team meeting minutes were taken in
anticipation of litigation that had already begun and were also non-core work
product.
Because Triple C presented prima facie evidence to support its non-core
work product privilege, it satisfied its initial burden. The “heavy burden” then
shifted to Martinez to show that she has a “substantial need of the materials in the
12
preparation of the party’s case and that the party is unable without undue hardship
to obtain the substantial equivalent of the material by other means.” TEX. R. CIV. P.
192.5(b)(2) (emphasis added). Arguing that a party needs the evidence to prove an
element of the case is insufficient to constitute substantial need. See In re Bexar
Cnty. Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 188 (Tex. 2007) (orig.
proceeding). Indeed, “[s]ubstantial need is not merely substantial desire.” Id.
Here, the record shows Martinez failed to meet this heavy burden. Martinez
broadly asserted below that she had a substantial need for the interview notes to
address difficulties in locating witnesses and deficiencies with the witnesses’
memory. But Martinez did not substantiate difficulties in locating witnesses and
did not provide any evidence to support her broad assertion.8 Moreover, Martinez
made no showing of substantial need in the trial court for the team meeting
minutes following the OSHA closing conference.
Likewise, Martinez did not argue or show that she was unable to obtain the
substantial equivalent of the materials by other means without undue hardship. See
TEX. R. CIV. P. 192.5(b)(2). Because Martinez failed to meet her heavy burden of
showing both substantial need and undue hardship, the materials remain non8
See In re McDaniel, No. 14-13-00127-CV, 2013 WL 1279454, at *4 (Tex. App.—
Houston [14th Dist.] Mar. 28, 2013, orig. proceeding) (mem. op.) (noting that
substantial need not met when no evidence offered to support conclusory
statement); In re Fairway, 515 S.W.3d at 493–94 (holding that plaintiffs did not
establish substantial need and noting that fading memories is true in almost every
accident case).
13
discoverable. In sum, Triple C met its burden to present prima facie evidence
supporting its non-core work product privilege and Martinez, on the other hand,
did not overcome her heavy burden to show substantial need and undue hardship.
Accordingly, we conclude that the non-core work product privilege applies here.
The trial court therefore abused its discretion in ordering Triple C to produce the
in-camera materials to Martinez.
To be entitled to mandamus relief, Triple C must also lack an adequate
remedy by appeal. See In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247
(Tex. 2021) (orig. proceeding). It is settled that when a trial court erroneously
allows the disclosure of material protected by the work product privilege, appeal is
an inadequate remedy as a matter of law. In re Bexar Cnty., 224 S.W.3d at 185; In
re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (orig. proceeding).
That is the situation here. The trial court’s order compels Triple C to
produce privileged materials. This goes beyond what Texas law allows. Triple C
therefore lacks an adequate remedy by appeal.
14
Conclusion
Accordingly, for all of the reasons above, we conditionally grant Triple C’s
petition for writ of mandamus and we order the trial court to vacate its February 5,
2026 discovery order compelling Triple C to produce “the documents submitted to
the Court for in camera review.” The writ will issue only if the trial court fails to
do so. We also lift the stay that we issued on June 19, 2026.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.
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