Thompson Coe recently obtained mandamus relief for client, GreCon, Inc., in a significant discovery dispute before the Fourteenth Court of Appeals. Plaintiff in a personal-injury case refused to produce settlement agreements with co-defendants, despite Texas discovery rules requiring production of the relevant parts of any settlement agreements. In a tactic adopted with increasing frequency by plaintiffs’ attorneys, plaintiff argued the settlement agreements were only relevant for purposes of proving GreCon’s right to a settlement credit, and thus were not relevant until after trial. GreCon petitioned the court of appeals for a writ of mandamus after the trial court refused to order production of the settlement agreements.
On January 12, 2018, the court of appeals granted GreCon’s petition and ordered the trial court to compel production of the settlement agreement. Although the three-justice panel did not unanimously agree on the reasons for the decision, all three agreed that GreCon was entitled to the entire settlement agreements before trial. Two of the justices concluded that the settlement agreements were discoverable in order to prove the right to a settlement credit, to determine whether a settling party had a bias or prejudice that could be the subject of cross-examination at trial, and to evaluate potential exposure and settlement strategy. A different two-justice combination reasoned that settlement agreements are presumptively discoverable and plaintiff waived his right to oppose discovery of the agreements by failing to seek a protective order when it initially responded to GreCon’s discovery request.
Thompson Coe partner Wade Crosnoe and associate Shelby Hall represented GreCon in the court of appeals. Partners Jennifer Aufricht and Sean Hicks represent GreCon in the trial court.