Weisel Enterprises v. Honorable Peter Michael Curry

ORIGINAL MANDAMUS PROCEEDING The issue in this original mandamus proceeding is whether the trial court abused its discretion in withholding certain documents from discovery, as privileged, absent an in camera inspection or other evidence justifying the privilege. In a split decision, the court of appeals denied relator's request for mandamus relief, holding that it was purely within the trial court's discretion whether or not to examine the documents in camera prior to denying discovery. Weisel Enterprises, Inc. d/b/a Builder's Choice v. Curry, 718 S.W.2d 50 (Tex. App. - San Antonio 1986, orig. proceeding). The dissent argued that the central issue was not the absence of an in camera inspection, but whether, absent such review of the allegedly privileged documents, there was any evidence of privilege to sustain the trial court's order denying discovery. The dissent's view is the correct one. We hold that the trial court abused its discretion and conditionally grant the writ.