In Re Pioneer Natural Resources USA, Inc. v. the State of Texas

Opinion filed June 18, 2026

In The

Eleventh Court of Appeals
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No. 11-26-00131-CV
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IN RE PIONEER NATURAL RESOURCES USA, INC.

Original Mandamus Proceeding

OPINION
This original proceeding involves the question of whether a defendant’s
counsel should be disqualified for his discussions, outside of formal discovery, with
a plaintiff’s former in-house counsel and potential witness regarding matters beyond
the scope of an existing trial court order that narrowly waived the attorney-client
privilege. Relator, Pioneer Natural Resources USA, Inc. (Pioneer), an oil and gas
company, filed this original petition for writ of mandamus asserting that Respondent,
the Honorable R. Shane Seaton, presiding judge of the 118th District Court of Martin
County, clearly abused his discretion by denying Pioneer’s motion to disqualify
counsel for Real Parties in Interest, John Paul Merritt; Pony Oil LLC; Pony Oil
Operating, LLC; and AXE Energy LLC (Defendants). Pioneer requests that we
order Judge Seaton to grant its motion to disqualify. Because we afford great
deference to the trial court’s ability to judge the witnesses’ credibility and make
appropriate findings of fact, we conclude that the trial court did not clearly abuse its
discretion in ruling as it did, and we deny Pioneer’s petition for writ of mandamus.
I. Factual and Procedural Background
Pioneer sued Defendants for tortious interference, alleging that Defendants
acquired “top leases,”1 which interfered with Pioneer’s plan to conduct a horizontal
drilling program in Midland and Martin Counties. Pioneer alleged that Defendants’
actions clouded title to its oil and gas interests and caused the delay and cancellation
of planned horizontal drilling operations. Pioneer is seeking $534 million in
damages in the lawsuit below. 2
After receiving discovery, Defendants believed that Pioneer’s damage model
was manufactured strictly for litigation purposes, and they filed several motions,
seeking sanctions, to compel discovery, and a dismissal. Approximately one month
later, Defendants’ counsel, Robert Vartabedian, arranged to have lunch with
Jefferson Rees, Pioneer’s former in-house counsel, who had left the company a year
earlier. They alluded to the pending litigation but did not discuss it substantively.

1
“Basically, a top lease is a subsequent oil and gas lease which covers one or more mineral interests
that are subject to a valid, subsisting prior lease.” See TRO-X, L.P. v. Anadarko Petroleum Corp., 548
S.W.3d 458, 462 (Tex. 2018) (quoting BP Am. Prod. Co. v. Laddex, Ltd., 513 S.W.3d 476, 478 n.1 (Tex.
2017)). Although the supreme court’s “basic explanation of what a top lease is [does] not expressly say so,
commentators accept that a top lease becomes effective as to those mineral interests subject to a bottom
lease only upon termination of the bottom lease.” Id. (first quoting Norman J. Hyne, Dictionary of
Petroleum Exploration, Drilling & Production 530 (1991) (“[A top lease is an] oil and gas lease on acreage
that currently has a valid lease called the bottom lease. When the bottom lease expires, the top lease
becomes effective.”); then quoting 8 Howard R. Williams & Charles J. Meyers, Oil and Gas Law: Manual
of Oil and Gas Terms 1081 (LexisNexis Matthew Bender 2017) (“[A] lease granted by a landowner during
the existence of a recorded mineral lease which is to become effective if and when the existing lease expires
or is terminated.”); and then quoting 1 Ernest E. Smith & Jacqueline Lang Weaver, Texas Law of Oil and
Gas § 4.5[F] (2d ed. 2015) (“By their nature, top leases delay the new lessee’s rights until the termination
of an existing lease.”)).
2
We express no opinion as to the merits of Pioneer’s petition nor the Defendants’ answers and
affirmative defenses thereto.
2
Following a hearing on Defendants’ motions, the trial court granted in part their
motion to compel discovery, and found that “Pioneer ha[d] waived attorney-client
and work product privileges through offensive use” as to the following:
a. The narrow topic of the creating and editing of Pioneer’s Rig
Schedule (known as PXD049565) and specifically related
communications; [and]
b. The narrow topic of the decision-making process to add or remove
W/2 of Section 3 wells from Pioneer’s Rig Schedule.
The trial court ordered Pioneer to produce responsive discovery concerning these
issues. The trial court also ordered Pioneer to produce a witness for deposition,
while clarifying that the waiver of privilege for the deposition would “be limited to
the basics (who, what, where, when, why[,] and how) of creating and editing
[Pioneer’s Rig Schedule] ONLY.” The trial court has yet to rule on Defendants’
motion for sanctions based on Pioneer’s alleged perjury and discovery abuse.
Approximately four months later, Vartabedian called Rees and discussed the
deposition testimony of Pioneer’s in-house counsel, Barry Thomas. According to
Vartabedian, the two discussed the trial court’s ordered privilege waiver and
Thomas’s deposition testimony regarding the drilling scheduling decisions, which
Rees purportedly contradicted. Vartabedian told Rees to review the order and
consider if he was willing to testify regarding information within the waiver. A few
days later, the two spoke by phone again; according to Vartabedian, they discussed
securing independent counsel for Rees as well as Rees’s role in Pioneer’s drilling
scheduling decisions. Eleven days later, Vartabedian called Rees but this time he
recorded the conversation. The two again discussed Pioneer’s drilling scheduling
decisions. Over two months later, but shortly after Rees had secured independent
counsel, Defendants produced a redacted version of the recorded conversation to
Pioneer and filed the entire recording with the trial court.
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Pioneer proceeded to file a motion seeking to disqualify Vartabedian and his
firm from representing Defendants and for sanctions, contending that they procured
information from Rees that went beyond the trial court’s limited waiver and delayed
producing the discoverable recorded conversation. The trial court conducted a two-
day evidentiary hearing on the motion, during which Rees and Vartabedian testified.
The trial court listened to the recorded conversation and reviewed evidence related
to the conversations. The trial court also permitted Rees to testify in camera for
approximately thirty minutes, without Defendants’ counsel present.
Following the hearing, the trial court entered an order granting Pioneer’s
motion in part and denying the motion in part. The trial court ordered that no use or
mention be made of the recorded conversation or “any alleged conversations with
Rees.” It found that much of the conversation “was confidential information . . . that
was believed to substantiate what Vartabedian had suspicions of since the beginning
of this case (i.e. ‘Pioneer is faking an injury’).” It further found that Rees later
disclaimed this information “as incorrect or exaggerated due to his lack of memory
or lack of involvement.” The trial court stated that “[t]ailored sanctions can
adequately mitigate any prejudice.” The trial court ordered Defendants to turn over
any documents relating to conversations with Rees, prohibited Rees from being
deposed, and awarded Pioneer attorney’s fees and costs “limited to the costs of
briefing/hearing this emergency Motion.” The trial court denied Pioneer’s request
for continued abatement, disqualification, and discipline.
The trial court issued the following findings of fact and conclusions of law:
1. The Court should apply the analysis from In re Meador, 968 S.W.2d
346 (Tex. 1998), even assuming arguendo some improper
procurement may have occurred.
2. After weighing the evidence of this record, the Meador factor of
knowledge of privilege leans in favor of disqualification.

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3. After weighing the evidence of this record, the Meador factor of
prompt notification weighs in favor of remedial measures, not
disqualification.
4. After weighing the evidence of this record, the Meador factor of
significance/prejudice favors tailored sanctions that can adequately
mitigate prejudice.
5. After weighing the evidence of this record, the Meador factor of
fault for disclosure unquestionably favors Pioneer.
6. After weighing the evidence of this record, the Meador factor of
prejudice from removing counsel strongly favors denying
disqualification in favor of alternative relief.
7. On the present record, Defendants have not established that the
crime-fraud exception applies to overcome Pioneer’s privilege
relating to the out-of-scope strategic/settlement/board
communications.
8. Most, but not all, of the recorded and unrecorded discussions
materially exceeded the narrow waiver order of the basics of who,
what, where, when, why and how.
The trial court concluded that the remedies it provided would “protect Pioneer’s
privileged information and the integrity of these proceedings while avoiding the
severe prejudice to Defendants from the ‘nuclear option’ of removal of their
counsel.” It summarized: “[T]his ruling preserves the narrow waiver the Court
previously entered, protects Pioneer’s privileged information, sanctions misuse by
excluding the recording and any information derived from it, and compels turnover,
all the while keeping this case moving forward without the extraordinary, case-
disrupting remedy of disqualification.”
In its petition for writ of mandamus, Pioneer argues that the trial court clearly
abused its discretion by denying disqualification because Vartabedian “tricked”
Rees and directly participated in the wrongful invasion of Pioneer’s privilege.
Pioneer argues that disqualification is mandatory in circumstances involving
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counsel’s wrongful access to privileged information and, alternatively, that
application of the Meador factors and the Texas disciplinary rules support
disqualification. Pioneer asserts that no adequate remedy by appeal exists for the
denial of a motion to disqualify. Defendants respond that the trial court “conducted
a careful Meador analysis and correctly found that tailored remedies—not
disqualification—were appropriate.”
II. Mandamus
Mandamus is an “extraordinary” remedy that is “available only in limited
circumstances.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). A writ of mandamus will issue only if the trial court clearly abused its
discretion, and the relator has no adequate remedy on appeal. In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court
abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. In re A.L.M.-F., 593 S.W.3d 271, 282
(Tex. 2019) (orig. proceeding); In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379,
382 (Tex. 2005) (orig. proceeding) (per curiam). In addition, because a trial court
has no discretion in determining what the law is or in applying it to the facts, a trial
court clearly abuses its discretion if it fails to correctly analyze or apply the law. See
Prudential, 148 S.W.3d at 135; see also In re J.B. Hunt Transp., Inc., 492 S.W.3d
287, 294 (Tex. 2016) (orig. proceeding). “In determining whether the trial court
clearly abused its discretion, an appellate court may not substitute its judgment for
the trial court’s determination of factual or other matters committed to the trial
court’s discretion, even if the mandamus court would have decided the issue
differently.” In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig.
proceeding). “The inappropriate denial of a motion to disqualify is an abuse of
discretion for which there is generally no adequate remedy on appeal.” In re Murrin

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Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding); In re RSR Corp.
(RSR I), 475 S.W.3d 775, 778 (Tex. 2015) (orig. proceeding); In re Guar. Ins. Servs.,
Inc., 343 S.W.3d 130, 132 (Tex. 2011) (orig. proceeding) (per curiam).
III. Disqualification
“‘Disqualification is a severe remedy’ and when considering disqualification
motions, ‘courts must adhere to an exacting standard . . . to discourage their use as a
dilatory trial tactic.’” In re RSR Corp. (RSR II), 568 S.W.3d 663, 666 (Tex. 2019)
(orig. proceeding) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656
(Tex. 1990) (orig. proceeding)). But “[o]ur profession recognizes few duties more
important than protecting client confidences.” In re Zaidi, 732 S.W.3d 525, 531
(Tex. 2026) (orig. proceeding). This is because “[f]ree discussion should prevail
between lawyer and client in order for the lawyer to be fully informed and for the
client to obtain the full benefit of the legal system.” Id. (quoting TEX.
DISCIPLINARY R. PROF’L CONDUCT 1.05 cmt. 1). This “ultimately serves the broader
societal interest of effective administration of justice.” Id. (quoting Paxton v. City
of Dallas, 509 S.W.3d 247, 250 (Tex. 2017)).
In considering disqualification based on trial counsel’s access to the opposing
party’s privileged or confidential information, the manner of review depends upon
how counsel obtained the information. When an attorney receives the opposing
party’s privileged information outside the discovery process and through no
wrongdoing of their own, the trial court should consider a variety of factors before
disqualifying the attorney, including:
1) whether the attorney knew or should have known that the
material was privileged;
2) the promptness with which the attorney notifies the opposing
side that he or she has received its privileged information;

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3) the extent to which the attorney reviews and digests the
privileged information;
4) the significance of the privileged information; i.e., the extent to
which its disclosure may prejudice the movant’s claim or
defense, and the extent to which return of the documents will
mitigate that prejudice;
5) the extent to which movant may be at fault for the unauthorized
disclosure;
6) the extent to which the nonmovant will suffer prejudice from the
disqualification of his or her attorney.
Meador, 968 S.W.2d at 351–52. In cases where a member of a law firm’s staff
switches employment in a case, two presumptions ensure that the person is
disqualified from further involvement in the case unless proper screening measures
are in place. RSR I, 475 S.W.3d at 780; In re Am. Home Prods. Corp., 985 S.W.2d
68, 74 (Tex. 1998) (orig. proceeding). It is presumed that the person who has worked
on a case has received confidences and secrets. RSR I, 475 S.W.3d at 780. It is also
presumed that the person shared the confidential information with the new employer.
Id. The second presumption can only be overcome by (1) instructing the person not
to work on any matter in the case on which they worked during prior employment,
and (2) taking reasonable steps to ensure the person does not work in connection
with matters in the case on which they worked with the prior firm. Id. The Texas
Supreme Court has cautioned that applying this bright-line rule to fact witnesses
instead of legal staff would limit informal discovery and fact gathering. Id. at 781.
There is no “blanket rule against any contact with such fact witnesses, even if they
were once employed by the opposing side and had contact with that side’s
attorneys.” Id. “If attorneys abuse their freedom by eliciting privileged or
confidential information from fact witnesses, then their conduct is subject to
Meador.” Id.

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The present case presents the peculiar scenario where Pioneer’s alleged
sanctionable conduct generated a limited privilege waiver, such that the former in-
house counsel for Pioneer became a discoverable fact witness. In this unique set of
circumstances, we believe the trial court properly applied and weighed the Meador
factors. The catalyst for this original proceeding is Pioneer’s withholding of
discoverable information, which led to the privilege-waiver, and for which a
sanctions motion is currently pending. Rees, far from a naive fact witness, is a
licensed attorney with access to the publicly available order waiving the attorney-
client privilege such that he could easily determine the scope of the waiver. The trial
court could well have questioned the proposition that Rees was “tricked” into
divulging matters beyond the limited waiver. Yet, Rees, exercising his own
professional judgment, apparently did so.
To be sure, the scope of the trial court’s waiver is susceptible to some
competing interpretation depending on the lens of the reader.3 While the context of
the trial court proceedings may provide clarity on the order’s language to those
involved in the litigation, the cold record does not lend such enlightenment.
Regardless, Vartabedian, emboldened by Pioneer’s perceived discovery abuses,
construed the waiver too broadly. Given these complexities, we do not find fault
with the trial court’s conclusion to apply the Meador factors. Because of the waiver,
Rees surely became a fact witness to some extent. See RSR I, 475 S.W.3d at 781
(suggesting that Meador would apply to such a situation). And whether Vartabedian
acted with the intent and purpose to exceed the trial court’s waiver is a fact the trial

3
For a matter that has been ongoing since October 2021, only the trial court knows the
context contributing to the understood intent of its order—and we do not second-guess the trial court’s
“reject[ion of] a blanket waiver on these topics.” On its face, the breadth of the trial court’s order may have
been in Defendants’ generous interpretation of that language permitting discovery regarding “[t]he narrow
topic[s] of the creating and editing of Pioneer’s Rig Schedule (known as PXD049565) and specifically
related communications” and “the decision-making process to add or remove W/2 of Section 3 wells from
Pioneer’s Rig Schedule.” (Emphasis added).
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court was uniquely capable of determining. See Zaidi, 732 S.W.3d at 539 (“A
disputed fact issue on intention precludes mandamus relief, as ‘we may not make
factual determinations in mandamus proceedings.’” (quoting RSR I, 475 S.W.3d at
778)); see also State Farm Lloyds, 520 S.W.3d at 604.
Further, we find no legal error in the trial court’s careful weighing of the
Meador factors. Knowledge of the privilege certainly weighs in favor of
disqualification, but the uncertain scope of the waiver of that privilege slightly
mitigates such weight. The record supports the trial court’s finding that prompt
notification weighed in favor of imposing remedial measures, as the information was
disclosed in short order after Rees had secured independent counsel. Although not
explicitly addressed in the trial court’s findings, we observe that Vartabedian surely
examined and digested the disclosed information, but the trial court found that most
of this information has been disclaimed by Rees as incorrect or exaggerated. And
we agree that the trial court’s tailored sanctions adequately mitigate any prejudice
from the privilege disclosure, as the trial court ordered that no use or mention be
made of the recorded conversation or any alleged conversations with Rees. 4 The
trial court also found that Rees had no personal knowledge of the topics that were
subject to its narrow waiver of privilege. Indeed, while the trial court found that
Pioneer could not be faulted for the disclosure of privileged information by Rees,
we cannot ignore that it was Pioneer’s conduct that was the catalyst for the limited
privilege waiver. Finally, we agree that the prejudice of removing counsel strongly
weighs against disqualification, given the lengthy and complex nature of this
litigation. See Murrin Bros., 603 S.W.3d at 57 (“Such prejudice to the nonmovant
may include the financial burden of obtaining substitute counsel that is not already

4
However, the trial court qualified its order prohibiting the use or mention of the conversations with
Rees by including “without further order of this Court.” Thus, as discovery progresses and trial proceeds,
the trial court has reserved the right to reconsider.
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familiar with the case.”). This is particularly true with an impending trial setting in
this case which has been ongoing for over four years.
The trial court exercised its discretion to fashion a finely tailored remedy to a
truly novel situation, one where everyone appears to have spit in the proverbial soup.
But having contributed to the ingredients, under these circumstances, they cannot
now be heard to complain of the taste. Upon review of the record, we cannot say
that the trial court clearly abused its discretion in ruling as it did. See id. at 56
(“Mandamus relief is only appropriate when the relators have established that only
one outcome in the trial court was permissible under the law.”). Accordingly, we
conclude that Pioneer has not established its right to mandamus relief. See
Prudential Ins., 148 S.W.3d at 135–36.
IV. This Court’s Ruling
We deny Pioneer’s petition for writ of mandamus.

W. BRUCE WILLIAMS
JUSTICE

June 18, 2026
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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