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NO. 2014-55319

HOUSTON COMMUNITY COLLEGE, Plaintiff and Counter-Defendant,

v.

RENEE BYAS,

Defendant and

Counter-Plaintiff.

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1/21/2015 4:13:14 PM Chris Daniel - District Clerk Harris County Envelope No. 3850781 By: DANIEL FLORES Filed: 1/21/2015 4:13:14 PM

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

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TH

JUDICIAL DISTRICT

PLAINTIFF HOUSTON COMMUNITY COLLEGE’S

MOTION FOR PROTECTIVE ORDER PURSUANT TO RULE 192.6

On June 6, 2014, Plaintiff Houston Community College (“HCC” or the “College”) placed

its General Counsel, Defendant Renee Byas, on administrative leave, because the recently

appointed Chancellor of the College, Dr. Cesar Maldonado, had lost faith in Byas’s ability to

perform her job.

That day, the Chancellor instructed Byas not to use her computer after being

was placed on leave. Despite these instructions, Byas retreated to her office to email documents

from her HCC computer to personal email accounts, as well as download documents to at least

one flash drive. The documents she emailed herself and/or saved included confidential attorney-

client work product and attorney-client privileged communications with HCC’s in-house counsel

and/or outside counsel.

It is the College, not Byas, who is the legal owner of these documents

and the holder of the privileges that attach to them.

Nevertheless, Byas now seeks to use these misappropriated documents in this litigation

against her former employer and client. She has produced many of these documents back to the

College

in

response

to

HCC’s

requests

for

the

production,

without

any

confidentiality

designations at all.

In blatant disregard of her duties as the College’s former attorney, Byas’s

counsel has even leaked privileged documents to local press in an attempt to curry favorable

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coverage.

See Ex. A. 1

In order to protect the privileged nature of these communications and

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documents, and prevent Byas from abusing her former office and exploiting the confidences of

her prior attorney-client relationship, the College seeks a protective order to ensure that such

documents are not disclosed to the public and, accordingly, must be filed under seal.

To be

clear, HCC does not currently seek an order permitting it to withhold any documents from

discovery.

Instead, HCC respectfully requests this Court enter the attached Protective Order

pursuant to Rule 192.6 of the Texas Rules of Civil Procedure requiring the parties to maintain

the confidentiality of HCC’s confidential, privileged documents.

I.

FACTS

The facts germane to the issue raised in this Motion are not complicated.

The College

hired Byas to serve as its General Counsel in 2008.

From January 2013 until May 2014,

however, Byas also served as the Acting Chancellor of the College—a temporary position that

she held while the College searched for a permanent chancellor.

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In May 2014, the College hired

Dr. Maldonado as its permanent Chancellor, at which time Byas resumed her General Counsel

duties.

In both of Byas’s capacities (General Counsel and Acting Chancellor), she had access to

a litany of attorney-client privileged, work-product privileged, and other confidential documents

and communications.

Under the Texas Rules of Professional Conduct, she also had a

responsibility to keep those confidences, even after her termination. See Tex. R. Disciplinary P.

1.05. She has failed to honor this responsibility.

After she was placed on administrative leave, Ms. Byas, in contravention of direct

instructions, took with her hundreds of the College’s privileged and confidential documents.

1 HCC has redacted the privileged information from the version of this exhibit being filed publicly but will provide an unredacted copy to the Court at the hearing. 2 While Byas served as Acting Chancellor, a different individual from the College’s Office of General Counsel, Destinee Waiters, served as Acting General Counsel.

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These include communications with outside counsel, legal opinions of outside counsel, and

internal

legal

communications

with

the

College’s

General

Counsel

Office

(including

communications with Byas in her General Counsel capacity as well Ms. Waiters in her Assistant

and Acting General Counsel capacities). It was exactly this sort of behavior that convinced the

College

to

employment.

first

place

Byas

on

administrative

leave

and

then

ultimately

terminate

her

Furthermore, as evidenced by the documents Byas has produced in discovery,

Byas had also been forwarding emails and attachments from her HCC email address to her

personal email address for years.

Since being placed on leave, Byas relied on these attorney-client communications and

documents to support her case during a closed, nonbinding termination hearing, and she intends

to

rely on them

here, in public court.

She has already produced dozens of privileged

communications and documents in this litigation.

However, the College, as the holder of the

privilege on these documents, is entitled to enforce their confidentiality.

Further,

Byas’s

counsel

has

leaked

at

least

one

document

containing

privileged

communications to local reporters in an attempt to obtain favorable coverage of this lawsuit. See

Ex. A (redacted by HCC).

Not only does Byas seek to expose the College’s confidential

documents, but she apparently seeks to abuse her prior position of confidence at the College to

leverage an advantage in this case. There could not be a more compelling set of facts to support

the entry of a protective order. Nevertheless, Byas has rejected the College’s reasonable request

to enter into a narrow protective order that allows parties to designate as “Confidential”: (a)

privileged communications produced in the lawsuit, and (b) any other documents that HCC

would not be required to share with the public under the Texas Public Information Act. Because

of this, the College is forced to turn to this Court.

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II.

LEGAL AUTHORITIES AND ARGUMENT

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In litigation, a public entity is treated as any other litigant. Houston Chronicle Publ’g Co.

v. Hardy, 678 S.W.2d 495, 501 (Tex. App.—Corpus Christi 1984, no writ).

A public entity

enjoys the same attorney-client privileges as any other litigant.

See, e.g., Health & Human

Servs. Comm’n v. McMillen, No. 03-13-00303-CV, 2015 WL 134686, at *2 n.1 (Tex. App.—

Austin Jan. 8, 2015, no pet. h.) (applying attorney-client privilege rules to the Texas Health and

Human Services Commission); Abbott v. City of Dallas, 3-13-00686-CV, 2014 WL 7466736, at

*1 (Tex. App. —Austin Dec. 23, 2014, no pet. h.) (recognizing that City was entitled to withhold

attorney-client privileged documents from production under the TPIA despite missing deadlines

under the statute).

And public entities are entitled to receive protective orders in order to protect

privileged or other confidential information from discovery. See, e.g., Flores v. Fourth Court of

Appeals, 777 S.W.2d 38 (Tex. 1989); In re Jobe, 42 S.W.3d 174 (Tex. App. Amarillo 2001, no

pet.); Houston Chronicle Publ’g Co., 678 S.W.2d at 508.

A

litigant may have documents protected from public disclosure if there is “a specific,

serious and substantial interest which clearly outweighs (1) the presumption of openness, (2) any

probable adverse effect that sealing will have upon the general public health or safety,” and “no

less restrictive means than sealing records will adequately and effectively protect the specific

interest asserted.” TEX. R. CIV. P. 76a.

This case was tailor-made for an order of protection.

The College currently seeks

protection (via confidentiality designations) for only two classes of documents:

(1) those

documents that contain attorney-client privileged communications and/or work product and (2)

those documents that fall into one of the few, narrow exceptions that the Texas legislature has

expressly carved out, in light of their sensitivity, of the Texas Public Information Act (“TPIA”).

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It is self-evident that the College is entitled to protection for these documents against public

disclosure.

First, as regards the College’s attorney-client privileged communications and documents

misappropriated by Byas, the College has a substantial interest in protecting the confidentiality

of those documents. The attorney-client privilege is “the oldest of the privileges for confidential

communications known to the common law.” In re XL Specialty Ins. Co., 373 S.W.3d 46, 49

(Tex. 2012) (quoting United States v. Zolin, 491 U.S. 554, 562 (1989)).

The “attorney-client

privilege promotes free discourse between attorney and client, which advances the effective

administration of justice.” Id. As the confidentiality of attorney-client communications and work

product is one of the bedrock assumptions of our legal system, the adverse effects of unraveling

it and destroying the College’s privilege greatly outweighs any presumption of openness that the

law ordinarily requires.

Further, the College does not have a less restrictive means to prevent

the destruction of the attaching privileges.

Either the parties must file these documents under

seal, or the privilege risks being destroyed. It is as simple as that. As Byas has already taken the

documents from the College, the College has no other remedy other than to request the entry of a

protective order.

Second, the College similarly has a substantial interest in shielding any documents from

the public that are not otherwise discoverable through an open records request under the TPIA.

In its wisdom, the Texas legislature enacted the TPIA in order to provide public access “at all

times to complete information about the affairs of government and the official acts of public

officials and employees.”

TEX. GOVT CODE § 552.001.

However, in doing so, the legislature

carved out a few narrow exceptions to TPIA requests.

There is certain information that is not

obtainable through open records requests.

These include not only attorney-client information

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and communications 3 but also privacy and personnel records to the extent they contain

confidential information, 4 law enforcement information regarding the investigation of crimes or

internal records, 5 inter-agency memoranda, 6 and information submitted for competitive bids to

the extent that information would give advantage to a competitor or bidder. 7

The Texas

legislature specifically exempted these items, among others, from public information requests

because of their sensitive nature.

To be clear, the College does not seek an order protecting it

from producing such information to Byas in this litigation should it otherwise be discoverable

under the Texas Rules of Civil Procedure; HCC simply seeks to protect its substantial interest in

protecting the confidentiality of these documents and seeks an order allowing the College to

designate such materials as “confidential.”

The Texas legislature has recognized this interest.

Further, the College has no other means in which to protect this information, to the extent it has

already been misappropriated by Byas or to the extent that the College is required to produce it

in discovery.

The relief the College requests here is narrow.

For both classes of documents at stake

here, there is no public interest in seeing those documents disclosed to persons other than the

parties, counsel, and the Court—notwithstanding the fact that HCC is a public entity, as

evidenced by the TPIA exceptions.

Texas law expressly recognizes the sensitivity of such

documents and the compelling reasons why they should be protected.

It is simply unjustifiable

that the College’s documents be exposed in public court when the State of Texas—through its

historical recognition and protection of the attorney-client privilege rules or through its express

3 E.g., TEX. GOVT CODE § 552.103 (litigation exception); id. § 552.107 (attorney-client privilege); id. § 552.111 (work product privilege).

4 E.g., id. § 552.024 (personal information of employees or family members); id. § 552.117 (same); id. § 552.136 (credit card information); id. § 5552.140 (military veteran’s discharge records).

5 E.g., id. § 552.108.

6 E.g., id. § 552.111.

7 E.g., id. §§ 552.104, 552.110.

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carve outs of the TPIA—has already determined that these documents should not be made

publicly available.

III.

CONCLUSION

For the foregoing reasons, the College respectfully requests that the Court order that the

attached Protective Order be entered so that the College may protect its confidential and

privileged information from public disclosure.

Respectfully submitted,

/s/ Ayesha Najam

Grant J. Harvey

GIBBS & BRUNS, LLP

State Bar Number: 09177700

gharvey@gibbsbruns.com

Ayesha Najam

State Bar Number: 24046507

anajam@gibbsbruns.com

Ross M. MacDonald

State Bar Number: 24087956

rmacdonald@gibbsbruns.com

1100 Louisiana, Suite 5300

Houston, Texas 77002

Tel: 713.650-8805

Fax: 713.750.0903

ATTORNEYS FOR PLAINTIFF /

COUNTER-DEFENDANT

HOUSTON COMMUNITY COLLEGE

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CERTIFICATE OF CONFERENCE

I certify that between December 29, 2014 and January 21, 2015, I conferred in good faith

with counsel for Defendant regarding the relief sought in this Motion, and that the Motion is opposed.

/s/ Ayesha Najam

Ayesha Najam

CERTIFICATE OF SERVICE

certify that on this day January 21, 2015, a true and correct copy of the foregoing

instrument was served upon the following counsel of record via the court’s electronic filing

system and by email:

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Rusty Hardin

State Bar No. 08972800

rhardin@rustyhardin.com

Robert Galatas

State Bar No. 00787509

bgalatas@rustyhardin.com

Jennifer Brevorka

State Bar No. 240182727

jbrevorka@rustyhardin.com

1401 McKinney Street, Ste. 2250

Houston, TX 77010

Telephone: (713) 652-9000

Facsimile: (713) 652-9800

/s/ Ayesha Najam

Ayesha Najam

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