In Re: Brigade Energy Services, LLC v. the State of Texas

Denied and Opinion Filed August 16, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00963-CV

IN RE BRIGADE ENERGY SERVICES, LLC, Relator

Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-11480

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith
Before the Court are relator’s August 15, 2024 petition for writ of mandamus

and emergency motion for stay. Relator challenges the portion of the trial court’s

August 12, 2024 Order Granting Plaintiff’s Motion to Compel Discovery and

Privilege Log Against Defendant Brigade Energy Services, LLC whereby the trial

court ordered relator to produce a PowerPoint presentation. Relator contends in this

original proceeding that the PowerPoint presentation is protected by the attorney–

client and work-product privileges.

Entitlement to mandamus relief requires relator to show that the trial court

clearly abused its discretion and that relator lacks an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). Relator bears the burden of providing the Court with a record that is

sufficient to show it is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837

(Tex. 1992) (orig. proceeding).

As the party asserting privilege, relator had the burden to present any evidence

necessary to support the privilege asserted in the trial court. TEX. R. CIV. P. 193.4(a).

The evidence may be testimony presented at the hearing or affidavits served at least

seven days before the hearing or at such other reasonable time as the court permits.

Id.

The record reflects that relator did not file any response to real party in

interest’s motion to compel or any affidavits to support its privilege assertion prior

to the August 2, 2024 hearing on real party’s motion to compel. The trial court’s

order granting real party’s motion to compel recites that the trial court had

considered “the Motion [to Compel], Supplemental Motion, evidence, [and]

arguments of counsel.” Relator, however, did not provide a transcript of the August

2, 2024 hearing or a statement that “no testimony was adduced in connection with

the matter complained.” TEX. R. APP. P. 52.7(a)(2). Without a transcript of the

August 2, 2024 hearing or a rule 52.7(a)(2) statement, we are unable to determine

whether relator made the required evidentiary showing and must presume the

evidentiary record at the hearing supports the trial court’s ruling. See In re Verp Inv.,

LLC, No. 05-14-01403-CV, 2014 WL 7476501, at *1 (Tex. App.—Dallas Dec. 31,

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2014, orig. proceeding) (mem. op.) (denying mandamus relief wherein relator

challenged order on motion to compel when relator failed to comply with rule

52.7(a)(2)).

Relator contends that at the August 2, 2024 hearing, the trial court requested

additional evidence regarding the PowerPoint presentation at issue. But relator has

not provided the transcript of the hearing to support this statement. TEX. R. APP. P.

52.3(g) (requiring every statement of fact to be supported by citation to competent

evidence included in the appendix or record). Although relator filed a response with

attached declarations several days after the August 2, 2024 hearing, the trial court’s

order does not refer to those materials.

Finally, even if the August 2, 2024 hearing was not evidentiary, and even if

the trial court considered the response and attached exhibits that relator filed on

August 7, 2024, we nevertheless conclude, after reviewing the petition and record

before us, that relator failed to demonstrate its entitlement to mandamus relief.

Accordingly, we deny relator’s petition for writ of mandamus. We also deny

as moot relator’s emergency motion.

/Craig Smith/
CRAIG SMITH
JUSTICE
240963F.P05

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