Background
James Rendon, a Triple C Project Services employee, collapsed while working around chemical reactors at a Mont Belvieu plant on August 4, 2022, and died two days later. After learning of the workplace injury on August 5—but before learning of Rendon’s death on August 7—Triple C president Carl Manchaca consulted the company’s outside risk manager and insurance broker as well as a safety consultant. Triple C also submitted a Serious Event Report to OSHA.
After Rendon died, Triple C’s safety consultants advised Manchaca to gather information in anticipation of an OSHA inspection and a wrongful-death lawsuit. Triple C personnel interviewed employees who had been at the plant and later prepared minutes of an internal team meeting following an OSHA closing conference. Rendon’s representatives subsequently sued Triple C and other defendants and moved to compel those materials. The trial court ordered production after reviewing them in camera, and Triple C petitioned for mandamus relief.
The Court’s Holding
The First Court of Appeals conditionally granted mandamus relief, holding that Triple C made a prima facie showing that the employee-interview notes and post-OSHA meeting minutes were privileged non-core work product. Manchaca’s uncontroverted declaration and the sealed materials established both that a reasonable person would have anticipated litigation and that Triple C subjectively conducted the investigation in anticipation of litigation. The court rejected the arguments that an attorney had to participate in preparing the materials, that the investigation occurred in the ordinary course of business, and that interview notes qualified as unprotected witness statements.
Because Triple C established the privilege, the burden shifted to the plaintiffs to show both a substantial need for the materials and an inability, without undue hardship, to obtain their substantial equivalent elsewhere. Their broad assertions about locating former employees and fading memories did not satisfy that burden, and they made no substantial-need showing concerning the team-meeting minutes. The trial court therefore abused its discretion by compelling production, and an appeal was inadequate because disclosure would destroy the protection afforded to the privileged materials.
Key Takeaways
- Nonlawyers may prepare protected non-core work product when materials are created in anticipation of litigation; attorney participation is not required.
- Notes taken during witness interviews are not themselves “witness statements” under Texas Rule of Civil Procedure 192.3(h).
- Once a prima facie claim of non-core work-product protection is established, the requesting party must prove both substantial need and undue hardship; conclusory claims about unavailable witnesses or fading memories are insufficient.
Why It Matters
The decision reinforces that a company’s internal investigation may receive work-product protection before a lawsuit is filed when the circumstances objectively indicate a substantial chance of litigation and the company actually investigates for that purpose. It also underscores the evidentiary burden facing a party seeking otherwise protected non-core work product.
The court ordered the trial court to vacate its February 5, 2026 discovery order compelling production of the materials reviewed in camera. The writ would issue only if the trial court failed to comply.