CROSSOVER: Mandamus Protects Employer’s Non-Core Work Product: Post-Incident Witness Notes Remain Privileged Without Proof of Substantial Need

In re Triple C Project Services, LLC, 01-26-00594-CV, August 13, 2026.

On appeal from 125th District Court of Harris County

Synopsis

The First Court of Appeals held that post-incident witness interview notes and internal meeting minutes prepared by a company’s nonlawyer representatives were protected as non-core work product under Texas Rule of Civil Procedure 192.5 because the record showed they were created in anticipation of OSHA proceedings and wrongful-death litigation, not in the ordinary course of business. The court further held that the requesting party did not establish Rule 192.5(b)(2)’s substantial-need and undue-hardship exception where the witnesses were identified, contact information had been produced, some witnesses had already been deposed, and OSHA had interviewed them.

Relevance to Family Law

This opinion matters in family law because work-product fights routinely arise in divorce, SAPCR, modification, enforcement, and property characterization disputes when counsel or party representatives gather witness statements, assemble timelines, summarize financial interviews, or hold internal strategy meetings after a triggering event. The case is a strong reminder that nonlawyer-generated materials can qualify as protected work product if they were created in anticipation of litigation, but the party resisting discovery must build a clean evidentiary record, and the party seeking production must do more than argue that contemporaneous witness notes are useful or that memories were fresher at the time.

Case Summary

Fact Summary

The underlying suit arose from a workplace fatality. After James Rendon collapsed while working at a plant in Mont Belvieu and later died, Triple C’s president consulted with the company’s outside risk manager, insurance broker, and safety consultant, and the company submitted a Serious Event Report to OSHA. Once Rendon’s death was confirmed, Triple C’s safety consultants advised that additional information needed to be gathered in anticipation of both an OSHA inspection and a wrongful-death lawsuit by the family.

The day after that advice, Triple C personnel met with an OSHA representative, and OSHA scheduled an on-site inspection. Based on that sequence of events, Triple C’s president believed litigation would follow. Triple C’s president, vice president of operations, and an administrative support specialist then interviewed employees who had been present at the plant on the day of the incident. Later, after counsel had been retained and after suit was filed, Triple C also generated minutes from an internal team meeting following an OSHA closing conference.

In discovery, Triple C logged the interview notes and internal meeting minutes as privileged work product. The plaintiffs moved to compel, arguing that the interview notes were not protected because no suit had yet been filed and no attorneys were involved when the notes were created. They also argued that the materials were important because the former employees were no longer employed by Triple C and would have had fresher memories immediately after the incident than later in litigation.

Triple C responded that the materials were prepared in anticipation of litigation, not in the ordinary course of business. It also pointed out that it had disclosed the witnesses’ identifying and contact information, that some of those witnesses had already been deposed, and that OSHA’s investigation materials included interview notes from OSHA’s own witness interviews. Triple C supported its position with an uncontroverted declaration from its president stating that, from August 7 forward, the investigation was conducted in anticipation of OSHA litigation and/or a wrongful-death suit and was not part of the ordinary course of business.

The trial court reviewed the documents in camera but nonetheless compelled production. Triple C sought mandamus relief, and the First Court stayed the order and ultimately conditionally granted mandamus.

Issues Decided

• Whether witness interview notes prepared by a company’s nonlawyer representatives after a workplace fatality were protected non-core work product under Texas Rule of Civil Procedure 192.5.
• Whether internal meeting minutes prepared after an OSHA closing conference and after counsel had been retained were likewise protected work product.
• Whether the evidence established that the materials were created in anticipation of litigation rather than in the ordinary course of business.
• Whether the requesting party satisfied Rule 192.5(b)(2) by showing substantial need for the materials and undue hardship in obtaining their substantial equivalent by other means.
• Whether mandamus relief was available to correct an order compelling production of privileged work product.

Rules Applied

The court relied primarily on Texas Rule of Civil Procedure 192.5. Under Rule 192.5(a), work product includes material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or the party’s representatives, as well as communications made in anticipation of litigation or for trial among party representatives. The rule is not limited to attorneys; nonlawyer representatives can generate protected work product.

The opinion applies the two-part anticipation-of-litigation test drawn from National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993), and reaffirmed in Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998):

• Objectively, a reasonable person must conclude from the totality of the circumstances that there was a substantial chance litigation would ensue.
• Subjectively, the party asserting the privilege must have actually believed in good faith that there was a substantial chance litigation would ensue and must have conducted the investigation for that purpose.

The court also emphasized several related principles from those authorities:

• “Substantial chance” means more than an abstract possibility or unwarranted fear, not a quantified probability.
• Actual notice of a claim or an explicit threat to sue is not required.
• The materials need not be prepared solely or primarily for litigation, so long as they were prepared in anticipation of litigation.
• Rule 192.5 protects non-core work product unless the requesting party shows both substantial need and inability, without undue hardship, to obtain the substantial equivalent by other means. TEX. R. CIV. P. 192.5(b)(2).

On mandamus, the court applied the settled rule that compelled disclosure of privileged material generally lacks an adequate appellate remedy. It cited authorities including In re Prudential Ins. Co. of America, Walker v. Packer, In re Christus Santa Rosa Health System, and In re E.I. DuPont de Nemours & Co.

Application

The court treated the privilege question as a straightforward Rule 192.5 analysis and focused on whether Triple C had made a prima facie showing that the materials were prepared in anticipation of litigation. On that point, the court found the record sufficient. The triggering event was not merely a routine workplace occurrence; it was a fatality. Triple C’s president had immediately consulted outside risk and safety professionals, had submitted a serious event report to OSHA, had been told that additional information needed to be gathered in anticipation of OSHA action and a wrongful-death suit, and had met with an OSHA representative before the witness interviews were conducted. The president’s sworn declaration stated that the investigation from August 7 forward was done in anticipation of litigation and was not part of the ordinary course of business. Because that declaration was uncontroverted, the court accepted it as sufficient prima facie proof.

The court rejected the notion that work-product protection failed simply because the note takers were not lawyers or because no lawsuit had yet been filed. Rule 192.5 expressly extends to materials prepared by or for a party’s representatives, and Texas work-product doctrine does not require counsel’s involvement as a prerequisite. Nor does it require an already-filed case. The court’s reasoning reinforces that anticipation of litigation can mature quickly when the surrounding facts make litigation substantially likely.

The court then turned to Rule 192.5(b)(2). On this record, the plaintiffs’ argument amounted to a claim that the notes were important because they were contemporaneous and witness memories had likely been better at the time. But usefulness is not the same as substantial need, and speculation about memory fade does not itself establish undue hardship. Triple C had produced last-known contact information for the former employees, and the plaintiffs had already deposed at least two key witnesses without apparent recollection problems. In addition, OSHA had already interviewed some of the same witnesses, and the plaintiffs had obtained OSHA’s investigation materials. Given those alternative sources, the court concluded that the plaintiffs had not shown they were unable, without undue hardship, to obtain the substantial equivalent of the withheld materials by other means.

That combination—prima facie proof of anticipation of litigation and a failure to prove substantial need plus undue hardship—made the trial court’s order unsustainable. Because the order compelled disclosure of privileged material, mandamus was the proper vehicle for correction.

Holding

The court held that the post-incident witness interview notes were privileged non-core work product under Rule 192.5. The fact that they were prepared by nonlawyer company representatives did not defeat protection, and the totality of the circumstances—fatality, OSHA involvement, consultation with outside risk and safety professionals, and the company president’s uncontroverted declaration—established that they were created in anticipation of litigation rather than in the ordinary course of business.

The court also held that the internal meeting minutes created after the OSHA closing conference remained protected work product. Those minutes were generated after counsel had been retained and after suit had already been filed, which only strengthened the privilege claim.

Finally, the court held that Rule 192.5(b)(2)’s exception did not justify compelled production on this record. Because the requesting party had access to witness identities and contact information, had already deposed some witnesses, and had access to OSHA interview materials, it failed to show substantial need and undue hardship. The trial court therefore abused its discretion, and mandamus relief was appropriate.

Practical Application

For Texas family law litigators, the immediate takeaway is that this case supplies a useful framework for protecting post-event investigative materials created by nonlawyers. In a divorce case, that may include forensic accounting intake notes, business-operations interviews conducted after suspected fiduciary misconduct, or internal summaries prepared by a spouse’s company after allegations affecting valuation or reimbursement claims. In a custody case, it may involve notes of interviews with teachers, nannies, supervisors, relatives, or treatment providers gathered after an incident likely to trigger emergency relief, modification, or a conservatorship fight. In enforcement and property cases, it may cover chronologies, interview summaries, or internal meeting notes assembled when litigation is already underway or plainly imminent.

The strategic lesson is two-sided. If you are asserting work product, do not rely on label alone. Build the evidentiary predicate through a detailed declaration that addresses both National Tank prongs: why a reasonable person would anticipate litigation under the circumstances and why the client actually did so in good faith. Also address ordinary-course-of-business objections directly. If the material was created by a nonlawyer, say so without apology and tie that person to Rule 192.5’s definition of a party representative.

If you are seeking the material, this opinion shows that generalized assertions will not carry the day. It is not enough to say the notes are contemporaneous, memories were fresher, or former employees are no longer with the organization. You need a developed record showing why witness access is genuinely impaired and why the substantial equivalent cannot be obtained through depositions, subpoenas, third-party records, prior agency interviews, electronic communications, or other discovery tools. In family law, that may mean proving a witness is unavailable, outside subpoena range, incapacitated, recanting, or unable to recall the relevant events despite reasonable efforts to obtain testimony.

Family Law Crossover

The procedural mechanism here is a mandamus challenge to an order compelling production of allegedly privileged work product under Rule 192.5. The substantive rule is that materials prepared by a party or the party’s representatives in anticipation of litigation may be protected even when they were not prepared by an attorney, and non-core work product can be discovered only if the requesting party proves both substantial need and undue hardship in obtaining the substantial equivalent elsewhere. In family law, this can arise when a party resists production of post-incident witness summaries, business-valuation interview notes, internal custody-investigation memoranda, or strategy-meeting minutes created after a child-safety event, a dissipation allegation, or a contested enforcement dispute. If the trial court orders production despite a supported privilege record, mandamus may be the appropriate appellate mechanism because disclosure of privileged material cannot be undone on appeal.

Checklists

Checklist for Asserting Work-Product Protection in Family Law

• Assert Rule 192.5 specifically, not just a generic “privilege” objection.
• Serve a privilege log that identifies the document type, date, author, recipients, and privilege asserted.
• Distinguish between core and non-core work product where appropriate.
• Identify the nonlawyer representative’s role and explain why that person was acting for the party in anticipation of litigation.
• Submit a sworn declaration establishing:
• the triggering event;
• the timeline;
• the objective reasons litigation was substantially likely;
• the party’s subjective good-faith anticipation of litigation; and
• that the investigation was not conducted in the ordinary course of business.
• Tie the facts to the National Tank totality-of-the-circumstances test.
• If the materials post-date retention of counsel or filing of suit, make that explicit.
• Be prepared for in camera review, but do not assume in camera review cures an otherwise inadequate record.
• If production is ordered, evaluate mandamus immediately.

Checklist for Defeating a Work-Product Claim

• Challenge whether the materials were actually prepared in anticipation of litigation rather than in the ordinary course of business.
• Test both National Tank prongs:
• Would a reasonable person truly have anticipated litigation under these facts?
• Did the producing party actually conduct the investigation for that purpose?
• Seek discovery on timing, routine policies, and who directed the investigation.
• Develop evidence that the same type of report or interview would have been created regardless of litigation.
• If invoking Rule 192.5(b)(2), make a concrete evidentiary showing of:
• substantial need; and
• inability to obtain the substantial equivalent without undue hardship.
• Show specific witness problems, such as:
• unavailability;
• incapacity;
• failed subpoena efforts;
• lack of memory after deposition;
• contradictory prior statements unavailable elsewhere.
• Explain why alternative sources are insufficient, not merely less convenient.
• Avoid relying solely on arguments that the notes are contemporaneous or likely more detailed.

Checklist for Building the “Substantial Need” Record

• Document every effort to obtain the witness’s testimony directly.
• Preserve evidence of unsuccessful contact attempts and subpoena efforts.
• Take or notice depositions before moving to compel, when feasible.
• Ask deposition questions that establish memory limitations or inability to reconstruct events.
• Obtain third-party investigative materials, including agency reports, school records, employer records, therapist records, or police materials where applicable.
• Show why those alternatives do not provide the substantial equivalent.
• Narrow the request to the minimum category of materials necessary to support the motion.

Checklist for Protecting Sensitive Internal Family-Law Investigations

• Mark investigative materials as prepared in anticipation of litigation when appropriate.
• Limit circulation to necessary party representatives.
• Separate routine business or parenting records from litigation-preparation materials.
• Avoid mixing factual incident reporting with legal strategy in the same document unless necessary.
• Memorialize when and why litigation became substantially likely.
• In business-owner divorce cases, coordinate early with company personnel so routine compliance records are not confused with litigation-driven investigations.
• In SAPCR matters, distinguish between ordinary parenting communications and post-incident litigation assessments.

Citation

In re Triple C Project Services, LLC, No. 01-26-00594-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Aug. 13, 2026, orig. proceeding).

Full Opinion

Read the full opinion here

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